During the Republican National Convention last July, former Lt. General Michael Flynn, who would go on to become President Trump's national security adviser after the election, delivered a blistering speech denouncing Democratic presidential nominee Hillary Clinton. "If I did a 10th of what [Clinton] did, I would be in jail today," he thundered, leading the crowd in a chant of "lock her up." Apparently, this was projection.

On Friday, Flynn pleaded guilty to making false statements to the FBI about his conversations with Russian ambassador Sergey Kislyak before Trump's inauguration. But that was only the beginning of the story. On Saturday, Trump decided to throw gasoline on the fire by appearing to admit obstructing justice. And yet, despite all this, it's unlikely that the Flynn revelations will do any lasting damage to the Trump administration. Congress needs Trump to help pass its agenda, starting with its massive tax bill that passed the Senate early Saturday morning.

Flynn was able to secure a plea bargain on only one count of lying to the FBI. This relatively lenient deal is a strong indication that Special Counsel Robert Mueller believes Flynn has useful information to offer against more powerful people. In particular, Flynn seems to have been receiving direction from Trump's son-in-law and senior adviser Jared Kushner. There is a strong possibility that, at a minimum, Flynn has damaging information to reveal about one of the most powerful figures within the Trump administration.

None of this is good news for the Trump administration, but we don't know the full implications of Flynn's plea yet. This didn't stop Trump from trying to make things worse. On Saturday, Trump — or at least someone with access to Trump's official Twitter account — tweeted that Trump "had to fire General Flynn because he lied to the Vice President and the FBI."

Trump, you may remember, ridiculously claimed that he fired FBI Director James Comey over his mishandling of the investigation into Hillary Clinton's private email server. This was always a farcical pretext — according to Comey, he had pressured the deposed FBI director to back off of his investigation of Flynn's contacts with Russian officials, which is a much more plausible explanation for Comey's firing. Trump is now admitting he knew Flynn lied to the FBI when he first told Comey to stop investigating Flynn, and then fired Comey. That is evidence that he intended to obstruct justice by firing Comey.

Later Saturday afternoon, Trump's lawyer (and former Pete Rose investigator) John Dowd took responsibility for the tweet. The idea that Trump's lawyer drafted a self-incriminating tweet with no apparent upside while perfectly emulating Trump's tone is not particularly plausible. Why would an expensive, experienced attorney approve an unnecessary tweet so damaging to his client's interests? But even assuming this is true, rather than a hastily conceived cover story, it doesn't help Trump's case much. As Ian Millhiser of Think Progressobserves, "a vetted statement drafted by counsel that admits to a crime is much more incriminating than a tweet tossed off by a suspect with a well-known reputation for saying things that aren't true."

So Mueller seems to be be building a serious case against the Trump administration, and Trump is all but conceding that there's not just smoke but a real fire. But there remains a serious problem: The remedy against Trump has to be political, and it's still clear that there will be no will in Congress to bring the hammer down on Trump by initiating the impeachment process. Instead, they'll turn a blind eye.

On top of that, It's hard to imagine at this point that Mueller will be able to complete his investigation. Trump can have Mueller removed, and he can also issue mass pardons to anyone he implicates. Normally, a president wouldn't do this because he fears impeachment (or being forced to resign, like Richard Nixon.)

But this isn't 1974. Congressional Republicans have made it clear that they will not act to constrain Trump as long as he can be a useful instrument to pass their agenda. And early Saturday, the Senate passed their tax legislation, which Republicans have been seeking to do since Trump's surprising victory. The omnibus bill is essentially a grab bag of awful Republican policy — it doesn't just massively cut taxes for the wealthy, it will take health care away from millions of people and raise taxes for many middle-class families, particularly those in states with decent social services. Trump will sign the bill when it passes in its final form, and that's all House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) care about.

In other words, Trump can almost certainly still act with impunity because he is willing it facilitate a substantively awful and incredibly unpopular agenda. The Flynn plea probably won't change this.

Facing a tough primary challenge, Sen. Jeff Flake (R-Ariz.) announced his retirement yesterday with a fiery speech on the Senate floor. The speech was striking because it didn't just call out President Trump, labeling his behavior "dangerous to a democracy." He also implicitly called out his colleagues for failing to check Trump. "When we remain silent and fail to act … we dishonor our principles and forsake our obligations," Flake said.

It's hard to argue with this. But it applies equally to Flake himself. He is not "remaining silent" — but that's the easy part. The bigger problem is the failure "to act." If Flake wants his speech to really matter, his words need to be joined by actions.

In his speech, Flake invoked James Madison's famous argument in "Federalist #51" that "[a]mbition must be made to counteract ambition" through the separation of powers. The system of checks and balances has often failed to work the way the framers intended, and the relationship between Trump and the Republican Congress is a case in point. Far from checking Trump's ambitions, congressional Republicans have made an implicit deal, agreeing to overlook Trump's dangerous unfitness for office and unprecedented corruption in exchange for Trump's willingness to advance Republican priorities like upper-class tax cuts, deregulation, and reactionary federal judges.

Flake's speech is not a sign that this devil's bargain is off, precisely because he's no longer seeking office. The fact that Trump's strongest conservative critics are senators — like Flake and Sen. Bob Corker (R-Tenn.) — who aren't intending to seek political office after 2018 illustrates the fundamental problem. As Jonathan Chait of New York puts it, contrary to Madison's expectations "[m]embers of the legislative branch are able to oppose Trump only if they surrender their ambition."

In a sense, then, Flake's pre-emptive retirement represents an initial failure to do what he admonished his colleagues to do and act against Trump. Had he run and defeated his Trumpite primary challenger Kelli Ward, he would have potentially emboldened other Trump skeptics in the Republican conference. And had he lost, the outcome would be the same as retiring. By not even trying to keep his seat, as Dara Lind observes at Vox, "Flake has all but said that you can't have a career in Republican politics while standing up to Trump." His actions, in other words, undercut his words.

So what can Flake do? First of all, he can use his platform as a prominent Trump critic to engage in repeated and specific criticisms of Trump's misbehavior. The media has, for example, mostly stopped talking about Trump's failure to release his tax returns — Flake could draw attention to this. He could also draw attention to Trump's potentially unconstitutional self-dealing and his attempts to disenfranchise voters. If, conversely, Flake's anti-Trump arguments are focused on generalized complaints about his lack of civility, they're unlikely to have much value.

Another action Flake can take is to come out against obviously nutty pro-Trump candidates like Ward and Alabama Republican Senate candidate Roy Moore, who lost his judgeship because he refused to comply with federal court orders and recently declared that the Supreme Court's decision in Obergefell v. Hodges to recognize a national right to same-sex marriage was worse than the Court's determination in Dred Scott v. Sandford that African-Americans were by definition not citizens of the United States. But while Flake has disagreed with some of Moore's comments, he has refused to say that he's unfit to serve in the Senate. If he doesn't think Alabama voters should reject Moore, how serious can his opposition to Trump be?

And, finally, Flake has one very powerful tool: a vote in a Senate in which Republican margins are razor-thin. To his credit, his fellow Arizona senator John McCain hasn't just criticized Trump — he acted to stop a crucial part of his agenda that Senate Majority Leader Mitch McConnell was trying to ram through the Senate using undemocratic methods. Flake, who no longer has to worry about a primary challenge, could tell McConnell that he won't vote for his agenda unless he begins conducting serious oversight of the Trump administration. If he continues to be a reliable vote for Trump's agenda, conversely, his anti-Trump speeches won't mean much.

One could object that it's not realistic to expect a conservative like Flake to vote against Republican policy priorities or to endorse Democratic opponents of even the most Trump-like Republican candidates. Well, maybe, but then Flake can't have it both ways. It's now abundantly clear that a Republican Congress will not check Trump in any way. If tax cuts are more important to Flake than constraining Trump, in the end this makes him no different than McConnell, Paul Ryan, and Trump's other Republican enablers. He's just being a lot more self-righteous about it.

The Supreme Court heard oral arguments Tuesday for one of the most important cases it will hear this term. Gill v. Whitford is a challenge to the extreme gerrymandering of the Wisconsin legislature. The state's gerrymander — under which Republicans were able to capture 60 out of 99 seats in the Wisconsin Assembly with less than 50 percent of the vote — effectively disenfranchises half of Wisconsin's closely divided electorate. And the arguments suggest that a majority of justices may finally rule that Republicans have gone too far.

Gerrymandering, the drawing of district lines to benefit political parties and/or candidates, has a very long history. But aided by computer models, it has become much more extreme. "Close to a hundred congressional seats and thousands of state legislative seats have been strategically drawn to be noncompetitive at the expense of all other interests," observe Sam Wang and Brian Remlinger, co-heads of the Princeton Gerrymandering Project. "As a consequence, tens of millions of voters have had no meaningful say in who represents them." And if Wisconsin's filibuster is upheld by the Court, the problem will get even worse.

In the 2004 case Vieth v. Jubelirer, the Court's four most conservative justices held that gerrymandering cases were "nonjusticiable" — that is, even if gerrymanders violated the constitutional rights of some voters there was no possible judicial remedy. Chief Justice John Roberts made it clear at oral arguments Tuesday that he endorsed this logic, asserting that the challengers were seeking to "tak[e] these issues away from democracy" and arguing that hearing gerrymandering cases would "cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country."

But in the context of gerrymandering, this argument is genuinely perverse. Malapportioned legislatures are exactly the kind of problem that the judiciary is uniquely well-situated to address. Indeed, gerrymanders like Wisconsin's have the effect of "taking democracy" from the state electorate. Opponents of it have no effective remedy at the ballot box precisely because the party that benefits from the gerrymander is massively over-represented. And, even worse, the gerrymander effectively insulates the incumbent party from accountability over any issue. If judicial review cannot address the mass disenfranchisement of voters, it's not worth preserving.

Paul Smith, representing the disenfranchised voters, responded very effectively to Roberts. "It may be that you can protect the Court from seeming political," he pointed out, "but the country is going to lose faith in democracy big time because voters are going to be like — everywhere are going to be like the voters in Wisconsin and, no, it really doesn't matter whether I vote." To uphold extreme partisan gerrymanders in the name of democracy and preserving the integrity of the Court would be remarkably disingenuous, particularly given that it's Roberts' party that will derive the greatest political benefit if the Court closes its eyes to the problem.

Justice Anthony Kennedy, the Court's swing vote on this issue like so many others, did not join the 2004 plurality opinion that gerrymandering was nonjusticiable. But he expressed concern about whether the Court could develop a standard that could inform legislatures when a gerrymander went too far. Misha Tseytlin, representing Wisconsin before the Court, tried to emphasize this point: "This Court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines," he argued.

But this argument is unconvincing. It's completely banal for the Court to make constitutional rulings without creating clear-cut standards that resolve any potential future case. That there might be more difficult cases in the future does not justify the Court abdicating its responsibility to enforce the Constitution. And the mass disenfranchisement of voters violates the 1st Amendment's right to association and the equal protection of the laws guaranteed by the 14th Amendment.

Nor is it true that it's impossible to develop a workable standard. As Yale Law School Professor Healther Gerken and several other experts argued in an amicus brief, evaluating whether districting created an excessively high partisan asymmetry is a test "highly intuitive, deeply rooted in history, and accepted by virtually all social scientists." A ruling holding Wisconsin's gerrymander unconstitutional could be done according to perfectly legible and workable standards. And it's also worth noting that the same cannot be said of, say, Chief Justice Roberts' opinion in Shelby County v. Holder, which struck down a crucial provision of the Voting Rights Act without articulating any coherent standard that would allow Congress to determine how it could effectively enforce the 15th Amendment. It's rather hard to take seriously conservative arguments that they can't possibly take gerrymandering cases because they can't develop a rule that would clearly resolve any future case.

Fortunately, observers of the oral arguments generally concluded that Wisconsin finally went too far for Justice Kennedy, who appears likely to vote to hold its gerrymander unconstitutional. Unlike his fellow conservative justices (with the exception, of course, of always-silent Clarence Thomas), Kennedy did not ask any questions of Smith. And his brief questioning of the state's representatives seemed to suggest he was receptive to the argument that clearly favoring one party over the other in districting was a violation of the First Amendment rights of supporters of the disfavored party. Tseytlin was forced to acknowledge, responding to Kennedy's hypotheticals, that explicitly disfavoring one party would be unconstitutional. Having conceded that, it's hard to argue that gerrymandering done with the clear intent of massively favoring one party is constitutional. We can't be sure, but Kennedy seems more likely to join the liberal faction this time.

Exactly how good that news would be depends on what rule the Court would create to apply to future cases. But even striking down particularly egregious cases like Wisconsin would be a major victory for American democracy. And such a ruling would be squarely within the legitimate powers of the Supreme Court.

Many of the promises President Trump made while on the campaign trail — to protect the federal welfare state, to drain D.C. of Wall Street influence — have unsurprisingly been exposed as empty vows. But when he mobilized white nationalism on his road to the presidency, Trump was telling the truth about how he'd act in office. The announcement Tuesday that the Deferred Action for Childhood Arrivals (DACA) program will be ended is but the latest example of the real consequences of Trump's hostility to immigration — and don't count on Congress to pass a fix anytime soon.

DACA was implemented in 2012, via executive action by former President Barack Obama. It has allowed roughly 800,000 "DREAMers" — otherwise law-abiding young adults who were brought to the United States as unauthorized immigrants when they were children, and so named for the Development, Relief, and Education for Alien Minors Act — to attain employment and education without immediate fear of deportation.

But following Tuesday's announcement, the Trump administration will not accept any new applications for the DACA program, nor will it renew permits for people who have them once they expire. Trump appropriately delegated the announcement to Attorney General Jeff Sessions, who was confirmed in the role despite having once been rejected as a federal judge by the Senate because of his alleged racism. Sessions was the first senator to endorse Trump during the campaign, in large measure because of Trump's anti-immigration rhetoric, so it's not surprising that he was a strong voice within the administration for ending DACA.

In his statement, Sessions attempted to frame ending DACA as simply respecting the authority of Congress. According to Sessions, DACA was "an open-ended circumvention of immigration laws" that constituted "an unconstitutional exercise of authority by the executive branch." By delaying implementation for six months, the Trump administration is theoretically allowing Congress to fix the problem legislatively.

So what's the problem?

First of all, the claim that DACA was unconstitutional is false. While the Obama administration preferred a legislative immigration solution, it is unequivocally the legal responsibility of the executive branch to set enforcement priorities.

It is also highly misleading to say that DACA contravened the policy established by Congress. The legislature has appropriated enough funds to deport only a small fraction of authorized immigrants; the executive branch using its discretion to determine which deportations were the highest priority is a known and inevitable consequence of the policy choices made by Congress. It was plainly constitutional for the Obama administration to determine that scarce resources would not be expended deporting law-abiding people who often have known no other home besides the U.S. — and it was also humane for those priorities to be made explicit.

In addition to his erroneous legal arguments, Sessions misrepresented DACA's consequences. His assertion that DACA had "contributed to a surge of unaccompanied minors" trying to immigrate illegally is false. There is no evidence that any such surge is happening at all, not to mention the fact that people who came to the U.S. after DACA was implemented are ineligible for its protections.

Still, one of DACA's great weaknesses is that it was much easier to reverse than a statute passed by Congress would have been. The best-case scenario would be if the Trump administration's decision to phase out DACA provides an incentive for Congress to finally pass legislation that would protect the DREAMers from deportation. Republican members of Congress who were reluctant to provide Obama with any legislative wins might be more amenable to compromise with Trump in the White House. It's possible that this won't work out so badly.

But don't bet on it. The internal divisions that have prevented congressional Republicans from agreeing on an anti-immigration bill haven't suddenly disappeared. Trump winning the Republican nomination didn't come entirely out of the blue, either; it's worth remembering that Mitt Romney rode to the Republican nomination in 2012 in part by running aggressively to the right on immigration. There will be substantial opposition to a legislative version of DACA within the Republican conference, and the Republican leadership will be reluctant to rely on Democratic votes to pass a bill on a hot-button issue. Republicans have found the transition from obstruction to governing difficult, and this is unlikely to be an exception.

Plus, there's an additional problem: With this Congress, the cure could well be worse than the disease. The anti-immigration faction with the Republican Party won't allow legislation to be passed without extracting a lot of concessions. A bill that authorized some version of DACA but, say, substantially increased funding for Immigration and Customs Enforcement could be worse than doing nothing. And whatever Congress does, Trump will still be president and Sessions will still be the attorney general. A law that provides more resources to this executive branch would still be bad news for many unauthorized immigrants.

The ending of DACA is both inhumane and terrible for the American economy. Now, the question is whether Congress will do nothing about it — or make things even worse.

During his very loosely hinged extemporaneous remarks in Phoenix on Tuesday, President Trump strongly hinted that he would pardon the infamous former Maricopa County Sheriff Joe Arpaio. On Friday evening, with a frightening hurricane descending on Texas, Trump made it official. The decision to issue his first pardon to a public official who made his reputation, such as it is, through race-baiting and a contempt for both legal restraints and basic human decency tells us a lot about Trump — and none of it is good.

It is highly relevant that Trump and Arpaio first became allies while Trump was rising to prominence within the Republican Party by pushing the racist conspiracy theory that Barack Obama was not born in the United States. The Arizona sheriff actually launched a farcical investigation into Obama's birth certificate, wasting taxpayer money to build his cred with his resentful white supporters. That Arpaio and Trump would become mutual admirers was inevitable.

It should go without saying that Arpaio is a terrible candidate for a pardon. If you have any doubts, read this chilling 2009 profile of Arpaio by William Finnegan in The New Yorker. Arpaio's first claim to local fame was to make the conditions of imprisonment for inmates under his jurisdiction as inhumane as possible — housing thousands of people in tents next to cites like dumps and waste disposal plants in the brutal Arizona heat. He fed inmates for 30 cents a meal, two meals a day, and then made the Food Network one of three channels available to prisoners. He put many people who were being held for trial and had not been convicted of any crime to work on chain gangs. Under his watch, guards were so consistently cruel to inmates that the county had amassed more than $40 million in civil damages from lawsuits. And he also engaged in egregious racial profiling when detaining people suspected of being illegal immigrants.

Arpaio's focus on abusing prisoners and arbitrarily detaining people of Latin American descent also made his "tough on crime" reputation grossly misleading. The resources wasted on his cruel publicity stunts took money away from law enforcement, slowing response times and leading to (among other problems) hundreds of botched or perfunctory sex crimes investigations. He did, however, find the time to file frivolous charges against two journalists who were looking into his suspicious property dealings, leading to another huge legal settlement for Maricopa County's taxpayers to pay off.

So of course it's completely logical that Trump would be a fan of Sherrif Joe. As The New Yorker's Margaret Talbot puts it, Arpaio "represents in miniature what the president would like to be more maximally — a successful American authoritarian." Plus, exploiting and fomenting resentments against racial minorities is central to both men's political appeal.

The crime that Arpaio was convicted for exemplifies his revolting career. In 2011, a federal judge found that Arpaio's detentions of people suspected of being illegal immigrants and nothing else were unconstitutional. Arpaio refused to comply, continuing to violate the Fourth and Fourteenth Amendment rights of numerous "suspects." Finally, earlier this year he was found to have been in contempt of court for refusing to comply with a judicial order.

Pardoning Arpaio under these circumstances is a gross affront to the principle of the rule of law. Arpaio flagrantly violated explicit constitutional rights, and then violated judicial orders to stop. To allow him to go unpunished is to celebrate the arbitrary use of state violence and to show contempt for the legal restraints public officials are supposed to be constrained by. As former Solicitor General Walter Dellinger tweeted, when Trump says that Arpaio was convicted for "just doing his job," this means that according to Trump, Arpaio's job "was violating a federal court order," and his pardon is therefore "an assault on law itself."

Unfortunately, the presidential pardon power is unreviewable. Short of impeaching and removing Trump, there is no remedy for this disgraceful pardon. Instead, it is yet another hard lesson of the dangers inherent in giving the awesome powers of the presidency to a man who is thoroughly unfit for office in any respect.

Depressingly but predictably, a white supremacist "Unite the Right" rally in Charlottesville, Virginia, turned deadly on Saturday. James Alex Fields Jr. is accused of driving a car into a crowd of counter-protesters — apparently intentionally — killing a 32-year-old paralegal and activist named Heather Heyer, and injuring more than a dozen others. Unfortunately, this kind of bubbling bigotry sweeping the country will only get worse before it gets better. While President Trump's weak response to the weekend's events represents its own genuinely unique dangers, we also shouldn't forget about some of the more genteel white supremacy that helped put him in the White House in the first place.

Trump's brief and poorly delivered speech following the rally was the latest disaster in a presidency that has been a perpetual blimp crash from the day Trump was inaugurated. Coming off as a cross between a Jim Crow-era Southern governor and a centrist pundit who assumes that both parties are equally responsible for any policy failure, Trump initially refused to call out the white supremacists specifically, and instead gave vague criticisms of the "egregious display of hatred, bigotry, and violence. On many sides. On many sides."

Holding everybody and therefore nobody responsible, Trump effectively apologized for the Neo-Nazis who fomented hatred and deadly violence in Charlottesville. This is a president of the United States who is willing to call out specific individuals, often over the most trivial of grudges, yet when a very real enemy of the nation's foundation rears its ugly head, he offers little more than a shrug.

This was not an oversight; he refused to call out the white supremacist groups and individuals by name for political and ideological reasons. Indeed, as Simon Maloy put it for The Week, "there's no mystery as to why Trump granted violent white supremacists the protection of false equivalence: Trump's base is angry white voters, and he's unwilling to antagonize a group of political supporters."

The mobilization of white supremacy is not incidental to Trump's rise, but central to it. Remember, he became a major figure in the Republican Party by aggressively promoting the racist falsehood that Barack Obama was not born in the United States, and continued to engage in egregious race-baiting throughout the 2016 campaign. There's a reason former Ku Klux Klan grand wizard David Duke declared after the Charlottesville rally that "[t]hat's why we voted for Donald Trump, because he said he's going to take our country back." The "our" in that sentence is represented by the white nationalist and anti-Semitic groups that staged the hate rally this weekend. Trump's lackluster response to such a rally was just another reminder of the very real particular dangers his naked appeals to white supremacy and xenophobia pose.

Trump's pathetic speech was a bridge too far for some of the Republicans who made a devil's bargain with Trump and have been ignoring his overt racism and corruption in the hope that he could serve as a vehicle to advance their unpopular policy agenda. Multiple prominent Republican senators, including Orrin Hatch (Utah), Cory Gardner (Colo.), Marco Rubio (Fla.), and Ted Cruz (Texas) did what Trump should have done but didn't: They specifically called out the white supremacist hate groups and condemned their destructive ideology.

This is laudable as far as it goes, but it doesn't let them, or the Republican Party, off the hook. The GOP has nurtured and harbored Trump's explicitly racist appeals. And still quieter, less obvious forms of racism run through the party. After all, it was not Trump who wrote the 2013 opinion gutting the Voting Rights Act, therefore paving the way for various voter identification laws and dubious redistricting. That distinction goes to Chief Justice John Roberts, a man who has long been opposed to expanding voting rights.

And Roberts has a lot of company. As Eric Levitz of New Yorkputs it, "[t]here are plenty of Republican lawmakers who campaign with utmost civility, and then push legislation that objectively advances racial inequity." Congressional Republicans have not acted to repair the Voting Rights Act or to guarantee access to the ballot. Instead, Republicans in state after state have enacted vote-suppression measures targeted at minority voters. As the Republican Party moves increasingly further to the right of the typical voter, the measures have only become more desperate. Trump's fondness for voter suppression doesn't make him an outlier — it makes him a typical Republican in 2017, and that is perhaps the scariest thing of all.

Calling out Trump's white supremacy is necessary, and it's good that some Republicans are finally doing it. But actions speak louder than words, and until Republicans start showing the American people, particularly those who aren't white, that they care about their rights and well-being, too, the GOP's condemnations of white supremacy will ring hollow.

It would have been easy for Sen. Kirsten Gillibrand (D-N.Y.) to rest on her laurels at the town hall she held at Hudson Valley Community College in Troy, New York, on Wednesday. In the wake of the narrow defeat of the Republican "skinny repeal" of the Affordable Care Act, she received two standing ovations from a packed house before she even began to speak. (It seems unlikely that the senators who went down with Mitch McConnell's ship, like Dean Heller and Jeff Flake, would get a similar reception.) But she had a more ambitious agenda in mind. Before taking questions, she celebrated the defeat of ACA repeal but quickly observed that it was not enough: Too many people still couldn't afford insurance. And making a point she would return to repeatedly for the next hour, she identified her preferred solution: Medicare for all.

I have no idea if Gillibrand is running for president or what her chances of winning the Democratic nomination would be if she does run. But it is becoming increasingly clear that the 2020 Democratic nominee will support Medicare for all or a similar program as the ultimate goal for health-care reform, even if it's not Gillibrand or longtime single-payer advocate Bernie Sanders. And on Wednesday Gillibrand made the case for the policy very effectively.

As a public speaker, Gillibrand's effect is that of the happy warrior. She projects optimism and determination even when decrying the damage President Trump has done to American institutions or the many negative effects of Citizens United. There is a place for anger in political discourse, too, and I don't know what the most effective tone for the next Democratic nominee would be. But in the context of defending Medicare for all, Gillibrand's approach was very effective, making universal public insurance seem like common sense — which of course it is.

In her opening comments, Gillibrand identified the problem: A system based largely around for-profit insurance simply cannot provide access to health care that is both affordable and universal. It's not a coincidence that the United States, which relies on the market for health insurance more than any other advanced liberal democracy, also spends far more money despite being the only system that does not provide universal coverage. The ACA's historic expansion of Medicaid was a major step in the right direction, and the more regulated and subsidized insurance markets it established were a significant improvement on the status quo. But ultimately, health-care reform should build on the former rather than on the latter.

Some observers will take Gillibrand's emphasis on Medicare for all as a sign she intends to run for president in 2020. She might, but, as she herself pointed out, her position isn't new. Gillibrand also favored Medicare for all in her first House race in 2006, running in a congressional district George W. Bush had carried by 8 points two years earlier. Her support for Medicare for all wasn't the reason she won in an electoral context that was unusually favorable to the Democratic Party, but it also suggests that there's no reason to think the position would be a political liability for a Democratic presidential nominee either.

While the audience was generally supportive of her advocacy for Medicare for all — some scattered booing aside — one audience member asked a practical question: What should Congress do if the votes in Congress for Medicare for all aren't there yet? Gillibrand had a ready answer: "You get to single-payer by letting people buy in [to Medicare] now."

The revival of the public option Gillibrand advocated as an interim step is definitely gaining momentum, among both Democratic politicians and liberal public intellectuals. Sen. Sherrod Brown (D-Ohio) — another potential 2020 contender — and six colleagues recently co-sponsored a proposal introduced by Sen. Debbie Stabenow (D-Mich.) to create a Medicare buy-in for people 55 or over, an idea that was narrowly defeated during deliberations over the ACA. And in addition to making buy-ins to Medicare available to as wide a group as is politically feasible, it's also worth considering the proposal made by Gerard Anderson, Jacob Hacker, and Paul Starr to make Medicare available when exchanges offer fewer than two plans.

Voluntary buy-ins are a potentially powerful tool, because they blunt opposition to reform by allowing people with good employer-provided insurance to keep it, while expanding the role of public insurance. And in the likely event that employer-provided insurance becomes less affordable, the availability of a public option will allow for a gradual transition. And a public option would also make insurance markets that remain better for customers.

I don't mean to understate the political challenges facing health-care reformers. Making the political case for Medicare for all is very doable, but enacting it — or even a major transitional step — won't be easy. Vested interests who oppose a primarily or exclusively public insurance system are aware of the potential power of a public option too.

But what's politically possible at a given point is a question that can be answered the next time the Democrats take over the White House and Congress. In the meantime, the Democratic Party needs to establish Medicare for all or a comparable universal program as a goal — and whether it's Gillibrand, Sanders, or another candidate, this is almost certainly the direction the next Democratic nominee will be pushing in.

Early Friday morning, Sen. John McCain walked into the Senate chamber and, to a burst of applause from Senate Democrats, cast the decisive vote to defeat Majority Leader Mitch McConnell's Health Care Freedom Act. It was a historic moment. And I have never been happier to have been dead wrong.

Earlier this week, McCain — who was recently diagnosed with brain cancer — flew to Washington, D.C., to vote on the motion to proceed with health-care legislation. He gave an intense speech harshly (and accurately) condemning the incredibly opaque and undemocratic process that McConnell was trying to use to ram an extremely unpopular bill through the Senate. The only problem was that he had just cast a crucial vote to allow the process he was attacking to go forward.

Some journalists praised McCain's speech nonetheless. Other journalists and pundits roundly mocked McCain for harshly condemning a process he cast a decisive vote to continue. I will freely admit that I was one of the skeptics. McCain had a history of showing rhetorical independence from the Republican leadership and then voting the party line. I thought we were seeing this again, at the worst possible time.

But, for once, the conventional wisdom was right. McCain told Minority Leader Chuck Schumer at 10 p.m. Thursday night. Some reporters on the floor began to get the impression that the bill might be in trouble. And, ultimately, McCain voted to kill the bill. The "maverick" earned his reputation with the highest stakes imaginable, and I'm happy to eat crow. We don't know yet why he did it, but his actions are what matter.

This is, above all, a victory for the American public. The so-called "skinny repeal" bill that was killed this morning would have led to 16 million people losing their health insurance and caused premiums to skyrocket. It would have resulted in millions of people losing employer-provided coverage and destroyed the individual insurance markets in many states. It would have savagely cut funding for women's health services and public health funding. Sen. Lindsey Graham (R-S.C.) called it a "disaster" — so you can imagine what people who didn't vote for it thought.

And a bill modified by a conference committee if this bill had passed would have almost certainly been even worse. It probably would have restored some or all of the draconian Medicaid cuts in the House and Senate bills, and eliminated even more of the Affordable Care Act's crucial consumer-protection regulations.

So the most important recent expansion of the American welfare state has been preserved. It's almost impossible to overstate the magnitude of this policy victory. Hundreds of thousands of lives have been saved. A great deal of suffering and countless medical bankruptcies have been averted. Dedicated protesters were celebrating outside of Congress, and they were right to.

This bill will also have a substantial political fallout. Oddly, McConnell did not release any further marginal votes even after he lost his majority. McCain and Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) — the latter two of whom voted no on the motion to proceed earlier in the week — were the only Republicans to vote "no." The two most vulnerable Senate Republicans in 2018, Jeff Flake of Arizona and Dean Heller of Nevada, cast futile "yea" votes. As Pema Levy of Mother Jonesobserved: "The best outcome for Dems tonight was for bill to fail, while top targets Heller and Flake vote aye. Amazingly, that's what happened." And numerous House Republicans who face tough re-election fights in 2018 also voted for an incredibly unpopular bill without getting anything in return.

This doesn't mean that Democrats will take over Congress in 2018. The Senate map is brutal for the Democrats, who may not be able to win the three seats they need to take over even in a wave election. The heavily gerrymandered House will also be a tough fight, although a winnable one.

But Democrats can worry about 2018 later. This was a major victory. Collins, McCain, and Murkowski deserve a lot of credit for bucking their party and doing what's right for the country. Deserving even more credit is every member of the Democratic caucus in the House and Senate, all of whom were steadfastly opposed to every terrible Republican proposal. And the most credit goes to the many citizens who gave so much. Supporters of the ACA took to the streets, called, and wrote, and made the public aware of what a fiasco passing this bill would have been. McConnell's failure is above all a triumph of democracy over a party whose leadership expressed stunning contempt for democratic norms.

President Trump has spent his tenure in office shattering norms of presidential conduct, and his disdain for legal restraints may be about to reach another level. The possibility that Trump will fire Special Counsel Robert Mueller is becoming very real, and there's no doubt that, at the very least, Trump is actively trying to undermine Mueller's investigation. The fact that an unprecedentedly corrupt president is interfering with a critical investigation into his own financial practices and his campaign's apparent collusion with Russia in the 2016 elections constitutes a major threat to the rule of law. But we should remember that the Constitution provides a remedy that could address Trump's lawlessness. The problem is that congressional Republicans are abdicating their oversight responsibilities for partisan reasons.

The threat that Trump might fire Muller is clear. In a remarkable interview with TheNew York Times last week, Trump said that "a special counsel should never have been appointed." More strikingly, he said that if Attorney General Jeff Sessions "was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else." The belief that the attorney general owes personal loyalty to the president demonstrates the difference between a president who respects the rule of law and one who does not. And given that Trump has already fired FBI Director James Comey to obstruct the investigation into Russia's electoral interference, it's not a huge stretch to think that Mueller might be next.

And despite the (not actually true) cliché that "it's the coverup, not the crime," it's nearly certain that Trump is engaging in a coverup because he's guilty of serious wrongdoing. It's telling that Trump's most strenuous objections have come after Mueller's team started to look into Trump's financial transactions. There's a reason Trump violated longstanding norms by refusing to release his tax returns, and it's certainly not because he has nothing to hide.

So we have a president who may well be guilty of serious offenses, and these offenses may have involved colluding with a foreign power's interference into an election. And yet, Trump can probably fire Mueller and get away with it, at least in the short term. How?

In some respects, America's Constitution might allow Trump to evade accountability. The American people saw enough problems with Trump to reject him at the ballot box, but the Electoral College installed the popular vote loser. And one prominent mechanism that can now allow Trump and his associates to evade punishment is also in the Constitution. While there's serious question about whether Trump can pardon himself, the president is right that he has an absolute power to pardon anyone, and he can pre-emptively pardon anyone who might be implicated in illegal activity on behalf of Trump himself.

But the Constitution does have one remedy: the impeachment power. Trump would be much less likely to fire Mueller if there was a credible threat to remove Trump from office. Nixon's decision to fire Special Prosecutor Archibald Cox helped create a bipartisan consensus that Nixon had committed impeachable offenses. When Nixon was told that support among Senate Republicans was collapsing, he pre-emptively resigned. If the Republican congressional leadership made it clear that firing Mueller was unacceptable, Trump might be dissuaded, and if he went ahead anyway he could potentially be held accountable at an impeachment trial.

But all indications remain that Republicans will do no such thing. After all, evidence of Trump's corruption was clear before the election, and his disregarding of norms and use of the office for his own material benefit has, if anything, exceeded the fears of his critics. And yet, congressional Republicans have been notably unwilling to exercise their oversight authority. There's an implicit deal: Getting Republican-nominated judicial and executive branch appointments confirmed and a Republican signature for legislation that a Republican Congress can pass means that Trump can be as corrupt as he wants.

Would firing Muller change anything? Almost certainly not. Republican members of Congress might ritually express that they're "troubled" or "concerned," but they will almost certainly then do nothing while Trump continues to undermine the rule of law.

Assuming Trump fires Mueller, and Republicans continue to look away, can anything be done? Maybe. Mueller is almost certainly documenting his findings, and will have information to provide if called to testify by the current or future Congress. It's also possible that state attorneys general, most notably New York's Eric Schneiderman, could continue investigations into Trump's finances if he does fire Mueller.

Still, not one of these alternatives is fully satisfactory. The rule of law is under threat because Republicans are putting their extremely unpopular policy agenda ahead of the interests of the country. Ultimately, the remedy for Trump's misconduct might have to come from the ballot box.

The story of Russia's interference in the 2016 election in favor of Donald Trump and the Republican Party continues to become more tragic and more farcical. On Friday, it was revealed that the meeting between Donald Trump Jr. and top Trump campaign operatives Paul Manafort and Jared Kushner was also attended by Rinat Akhmetshin, an American citizen and accused spy who is connected to the Kremlin. Then, on Sunday, the Secret Service denied having vetted the meeting, a claim made earlier in the day by President Trump's legal team.

As more details of the meeting continue to emerge, and the lies by Trump Jr. and the Trump team keep piling up, it's looking more and more likely that there was significant collusion between the Trump campaign and the Russian state, and it is now beyond dispute that the Trump campaign wanted to collude with the Russians. This alone is already a huge political scandal, and things are likely to keep looking worse for Trump than better.

One thing that's remarkable about this is that the focus on "collusion" is in large measure the result of goalpost-moving by the Trump administration and its apologists. It was never necessary for collusion to be proven for this to be a major scandal. There is overwhelming evidence that Russia used illegal, privacy-invading hacks to help skew the election in the favor of Trump and congressional Republicans — which, particularly in a presidential election decided by fewer than 100,000 votes in three states, is a huge deal. And we also know that Trump and other campaign associates openly invited and cheered the hacks and their release by WikiLeaks, and we also know that Trump isn't interested in punishing the Russians for their interference in the election. All of this is really bad. Talking about collusion was a way of changing the subject that was valuable for Trump in part because collusion would apparently be much harder to prove.

The problem is that Trump's associates are so corrupt and incompetent that the tactic has backfired. Earlier this year, Trump Jr. denied that the meeting Akhmetshin attended even took place. Last week, his lies kept unravelling as he admitted to what had been proven, while making further claims which would immediately be disproven. In short order, Trump Jr. admitted that the meeting with a Russian official took place but said it was about adoptions, and then admitted that actually, the Trump campaign was seeking dirt on Clinton from the Russians, but only after leaked emails gave him no choice. Revealing that Akhmetshin was at the meeting constitutes a lie by omission at best.

At the very least, this settles the question of whether there was any level of collusion between the Trump campaign and the Russians. We know now that the Trump campaign welcomed the illegal assistance of representatives of the Russian state, and not only did they fail to call out the Russian interference into the election, Trump cited the hacked emails WikiLeaks put on the internet constantly — more than 150 times in the last month of the campaign alone.

Friday's story, and Sunday's bungled Secret Service blame game, just puts the Trump campaign in deeper. According to The Associated Press, Russian attorney Natalia Veselnitskaya brought with her to the meeting "a plastic folder with printed-out documents that detailed what she believed was the flow of illicit funds to the Democrats," undermining Trump Jr.'s claim that the meeting was a bust that produced no meaningful information.

Even if nothing more emerges, what we know now is highly damning. And as Matthew Yglesias of Voxobserves, you would have to be gullible in the extreme to think that Trump Jr. is telling the truth and the whole truth. His serial lying means that his statements cannot be given any credit. People generally don't keep lying about an event for which there is an innocent explanation. It is likely that more damaging information about the Trump campaign's relationship with Russian representatives will emerge. This is not the end of the story.

It's telling, as Yglesias points out, that the Fox News party line is shifting. Instead of pushing the idea that claims that Trump colluded are false, the network is saying that if Trump did indeed collude with the Russians to help rig the election, it's no big deal. In other words, even Fox News is unable to deny that there's more to this than just a political witch hunt.

What we already know about Trump and Russian interference in the 2016 election is bad. Given that this is the Trump administration we're dealing with, we should assume that it will only get worse.

It has been clear for quite a while that the Russian state intervened in the 2016 election on behalf of Donald Trump. And given the ties between the Trump campaign and various Russian officials and the tendency of Trump's associates to lie about or "forget" meetings with the Russians, there was always the possibility of collusion. It always seemed unlikely to me, however, that clear evidence of such collusion would emerge even if it had ocurred. As it happens, I overestimated Donald Trump's son.

A series of increasingly damaging New York Times stories makes it clear that Donald Trump Jr. was not merely aware of Russian interference in the 2016 election, but actively encouraged it. Make no mistake — this means potential legal trouble for Trump Jr. and political trouble for his father's administration.

On Monday night, the Timesreported that Donald Trump Jr. had been informed that a lawyer with connections to the Russian state was offering material that "was part of a Russian government effort to aid his father's candidacy." This morning, Trump Jr. tried to pre-empt the next scoop by posting the emails along with a statement on Twitter.

This led the Times to run with its story, which highlighted an incredibly damning exchange. Told that the Russian government had documents that "would incriminate Hillary and her dealings with Russia and would be very useful to your father," Trump Jr. responded, "If it's what you say I love it especially later in the summer." Trump Jr. then arranged for a meeting between himself, Trump's unpaid campaign manager Paul Manafort, Trump adviser/son-in-law Jared Kushner, and what he believed to be a Russian state official.

Let's pause to observe how remarkable this is.

Donald Trump Jr. was told that the Russian state wanted to use incriminating information to intervene in an American presidential election. Not only did he not report this to the FBI, his response was to welcome Russian intervention and to arrange for a meeting with what he believed to be a representative of the Russian state and two of Trump's closest aides-de-camp. And he put it in writing!

Trump and his apologists tried to focus on collusion as the relevant standard in order to distract from the clear evidence that Russia intervened on behalf of his campaign in 2016. Alas, this strategy didn't take the incompetence of the Trump campaign into account.

It is now beyond dispute that the Trump campaign tried to collude with Russia, while knowing that the Russian state was trying to harm Clinton's chances of winning. Evidence of further collusion may well emerge — as the fictionalized version of Deep Throat observed about the Nixon administration in All the President's Men: "These are not very bright guys" — but what we know now is already enough to constitute one of the biggest scandals in the history of American politics.

In addition to representing a clear-cut betrayal of his country, these emails create a serious potential legal problem for Trump Jr. It is illegal to solicit a contribution of anything of value from a "foreign national … in connection with any federal, state, or local election." This is exactly what Trump Jr. did.

Will he end up in jail? Probably not. His first advantage is that his father, who he sold out his country to help elect, is now in charge of the Department of Justice. And even if Trump can't quash a prosecution, he has the unlimited power to pardon anyone he chooses for any crime. It is more likely than not that President Trump will now pre-emptively pardon Trump Jr., Manafort, Kushner, and anyone else from his campaign implicated in Russian electoral interference.

The president's control of the law enforcement apparatus is one reason the framers established another remedy: impeachment. But this, too, remains unlikely to happen. After all, Senate Majority Leader Mitch McConnell knew about Russian interference on Trump's behalf during the campaign and actively worked to shield it from public view. Unless Trump starts threatening to veto tax cuts or nominate liberal judges to the federal courts, congressional Republicans will continue to protect him no matter how much evidence of impeachable offense accumulates. And, alas, the Constitution has no provision for do-overs, so the tainted election can't be undone.

Which leads us to the final mechanism of control: the ballot box. Trump is already highly unpopular, and it's now clear not only that Russia helped deliver the 100,000 votes that allowed the popular vote loser to win the Electoral College but that the most important members of his campaign knew about it and welcomed it. This won't make it any easier for McConnell to ram his tottering and extraordinarily unpopular health-care bill through the Senate. And while it would take a true wave election for the Democrats to take over the House of Representatives in 2018, this is the kind of scandal that can produce that kind of wave.

Trump Jr. probably won't be punished for his crimes, but if his incompetence leads to Republicans losing their grip on Congress, this would be a much better punishment anyway.

Bernie Sanders doesn't seem convinced. The Vermont senator recently said his top priority on health care is stopping Republicans' Better Care Reconciliation Act: "We are focusing all of our energy on trying to defeat this terrible piece of legislation." He has also come out in favor of improvements to the Affordable Care Act as an interim step. Does this represent a change in policy on the part of the long-time advocate of single-payer health care? Not at all — he still plans to introduce a Medicare-for-all bill later this year. And his analysis of the situation is perfectly coherent. Passing TrumpCare would make getting a universal, mostly or entirely public health care system harder, not easier.

In an otherwise excellent recent piece in The New Republic, Brian Beutler takes the opposite tack. He applauds Sanders and the left wing of the Democratic Party for its "selfless" defense of the Affordable Care Act as it faces devastating attacks from House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell. To Beutler, the left is making a sacrifice, defending people facing the loss of insurance now even though "the enactment of TrumpCare would shorten the way to single payer." But I don't think this is quite right. Rather, the left is actually acting in both its short and long-term interests in defending the ACA.

The case that passing TrumpCare would make single payer more likely — also made recently by Vox's Ezra Klein — is straightforward. If Republicans wreck the ACA's insurance exchanges, Democrats will have no choice but to embrace single payer as a long-term goal. But one obvious problem with the argument is that it's not necessary for BCRA to pass for this to become the consensus Democratic goal. Two frontrunners for the 2020 Democratic nomination, Sanders and New York Sen. Kirsten Gillibrand, favor Medicare-for-all, which makes it extremely likely that all the major candidates for the nomination will follow suit.

To people who think that the primary barrier standing in the way is the fecklessness or corruption of Democratic Party leadership, a Democratic president who favors single payer is most of the battle. But in reality it's more like 5 percent of the battle. Rather, the difficulty of getting to something like single payer is rooted in formidable structural barriers. In addition to the basic fact that the large number of veto points in the American system protects the status quo, there are two major factors that make the immediate abolition of all private health insurance an incredibly difficult political lift. And Republicans gutting the ACA wouldn't make them any less so.

The first is that the longer you wait to do a public system, the harder it is to accomplish. When countries like the U.K. and Canada passed nationalized and single-payer programs, respectively, health-care spending represented a much lower percentage of GDP. This made things easier for two reasons. First of all, these countries were able to overcome strong opposition from medical professionals by throwing money at them. American policy-makers won't be able to buy off doctors, hospitals, and other vested interests that way; indeed, any viable universal public insurance would have to give them a major haircut. This won't be easy. And, second, all of the countries that created universal programs decades ago have been able to control costs throughout that period. Keeping costs lower through public cost controls over time is a lot easier than cramming them down once they've been allowed to grow, as has happened in the U.S.

The second major barrier to single payer or a similar program is that people who have employer-provided insurance or Medicare generally like it. The ACA's exchanges don't present much of a problem; any well-designed public program is likely to give most people getting their insurance through the exchanges a better deal. Employer-provided insurance is a different story — a lot of people will likely to be made worse off (although this will probably be less true over time.) And even if Medicare is preserved as is, people already in Medicare have nothing to gain from a universal program and may perceive a threat. In health care, as in many things, people are strongly risk-averse.

The difficult impediments standing in the way of single payer can be seen in the recently failed California proposal. Some of the problems with the bill were California-specific, but some have national implications. The designers of the program tried to deal with the second problem by offering public insurance with generous benefits that would leave very few people worse off. But this ran the bill straight into problem No. 1 — the bill would have been exorbitantly expensive. The answer to the question of whether the levels of taxation necessary to fund the program would be politically viable is implicitly answered by the fact that the Senate bill didn't contain a funding mechanism at all.

It should be obvious at this point that passing TrumpCare wouldn't mean an easy path to universal health care. The Republican bill would make the first problem even worse while doing nothing about the second. Universal public insurance would still be a very heavy lift, and with Medicaid having been gutted the next Democratic government would just be starting further away.

This doesn't mean that universal health care with mostly public insurance is an impossible goal. But, as Sanders says, it's much more likely to happen through a gradual, largely voluntary expansion of Medicaid and Medicare rather than by the immediate elimination of all private insurance (including good insurance provided by employers.) Passing TrumpCare would just be another barrier in the way. In other words, fighting to preserve the ACA isn't inconsistent with universal health care — it's an important part of the struggle.

If Chief Justice John Roberts is to be believed, the Supreme Court ruled today in a modest case involving playground surfaces. But Justice Sonia Sotomayor saw the Trinity Lutheran Church v. Comer decision for what it is: a fundamental reshaping of the relationship between church and state in the United States, and not for the better.

At issue is the Supreme Court's decision today that the state of Missouri was required to provide funding to a church-run preschool and daycare center under a program to improve playgrounds. Sotomayor wrote a powerful dissent which again makes clear that her nomination was one of the best decisions Barack Obama made as president. But only Justice Ruth Bader Ginsburg joined it. Astonishingly, both Obama's other nominee, Elena Kagan, and the Clinton nominee Stephen Breyer joined Roberts to vote to require Missouri to provide the funding.

The case revolved around a formal policy of the Missouri Department of Natural Resources that prevented public money from being given to religious institutions or individuals in their capacity as religious leaders. This policy reflects the basic logic behind the First Amendment's prohibition on the "establishment of religion." The framers feared that providing public money to religious institutions would both sow religious conflicts within society and promote state meddling with religious institutions. Missouri's policy reflects the sound view that taxpayer money and religious institutions should be kept separate.

The Supreme Court has held, in a limited number of cases, that taxpayer money can directly or indirectly be given to religious institutions for a secular purpose. Today's decision goes further: It requires the state to provide money to a religious institution, standing the Establishment Clause on its head.

In the 2004 case Locke v. Davey, the Court upheld a provision of the Washington state constitution that prevented public scholarship money from being used for theology degrees. Chief Justice William Rehnquist reasoned that there was "play in the joints" between the Establishment Clause and the First Amendment's right to the "free exercise of religion": "[T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." Missouri argued that its policy should be upheld on this basis: It was allowed to make a judgment that public money should not be given to religious institutions on limited grounds that even the Supreme Court might rule would not unduly undermine the separation of church and state.

In a brief opinion by Chief Justice Roberts, the Court disagreed. Roberts held that if religious institutions were prevented from applying for state grants, their right to the free exercise of religion would be violated, and therefore Missouri's attempt to apply longstanding principles separating church and state was unconstitutional.

As he often does, Roberts went out of his way to suggest that the effects of the decision are modest. In a footnote, Roberts asserted that "this case involves express discrimination based on religious identity with respect to playground resurfacing." (Justices Clarence Thomas and Neil Gorsuch, who in a concurring opinion argued that Locke was wrong and should be explicitly overruled, refused to join the footnote, denying it the status of a majority opinion.) But despite Roberts' false modesty, this decision is almost certain to have implications well beyond playground improvements.

Justice Sotomayor's dissent makes a powerful argument that the effects of this case will be much greater than Roberts implies. This case was about the relationship between church and state, and as Sotomayor observes, "The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church."

The implication of the majority's holding is that Missouri is unfairly discriminating against religious institutions. But as Sotomayor argues, this is an erroneous characterization of Missouri's motives and the core purpose of the First Amendment. Withholding taxpayer money from religious institutions does not represent animus against religion or deny individuals their right to worship (or not worship) as they see fit.

History is definitely on the side of the dissenters. Sotomayor painstakingly details the decision made by one state government after another to end experiments in religious funding. "The course of this history shows that those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship," concludes Sotomayor. Missouri's policy is consistent with this insight, and to argue that the Constitution actually forbids Missouri from making this sensible decision is wrong.

Sotomayor ended her careful evisceration of Roberts' opinion by pointing it out that it leads to a place where "separation of church and state is a constitutional slogan, not a constitutional commitment." She's right: Missouri's policy of secularism is meant to protect religious institutions based on hard-earned historical lessons. It's dismaying that two Democratic nominees joined with the majority's undermining of a critical constitutional principle.

One thing that the Republican push to take health insurance from more than 20 million people has done is to dispel the illusions of many moderate Democrats. "If the American Health Care Act passes," arguesVox's Erza Klein, "Medicare for all" will power the Democratic Party after 2017. This is almost certainly correct. In fact, universal public insurance will be the consensus Democratic goal whether the AHCA passes or not.

The idea that the structure of ObamaCare would insulate it from political pushback was always based on a lie: that national Republicans would support good universal coverage as long as the market was involved. This has never been true. The Heritage Plan that is sometimes erroneously cited as the basic model for the Affordable Care Act was in fact a plan to replace Medicaid, Medicare, and employer-provided insurance with private insurance that would cover very little. Not only was it nothing like the ACA, in other words, it was an even more radically right-wing plan than TrumpCare. And while the legislation signed by Mitt Romney in Massachusetts was actually similar to the ACA, laws passed by supermajorities of New England Democrats tell us absolutely nothing about what national Republicans support.

Whatever Republicans pretend to believe when it looks like Democrats might be able to pass something, the actual Republican response to the uninsured has always been "tough luck." The AHCA should stop the denial on this point, and make it clear that the Democrats should forget trying to pass legislation that Republicans can live with and just pass the best legislation they can, which means expanding public insurance as much as possible. There are a couple of implications related to this point.

First, supporters of universal health care need to be willing to take "yes" for an answer. Two potential Democratic nominees in 2020, Bernie Sanders and Kirsten Gillibrand, favored Medicare For All even before Obama was elected. This is definitely a point in their favor. But what is even more important is creating a norm in which every viable Democratic nominee is committed to universal public insurance. After all, a situation in which the president supports single-payer and 30 Democratic senators don't like it will not produce single-payer. The left of the party has always favored universal health care, but it's not enough. Major legislation requires a consensus.

If Congress is ever going to pass universal health care, or even take major steps in that direction, converts are going to be necessary. They should be accepted — and then held to their promises. Klein's reporting suggests that more and more moderates are realizing that market-based compromises were a sucker's bet, and this trend needs to continue.

Second, liberals should recognize that the Democratic Party is trending in this direction whether the AHCA passes or not. It might be tempting to interpret Klein's analysis as an argument for "heightening the contradictions" — that is, hoping the AHCA passes because it would make single payer more likely. But this would be a grave mistake.

The most important reason to go all-out to stop the AHCA is that the legislation would be a human rights catastrophe, creating enormous amounts of needless suffering, economic hardship, and unnecessary death. Maybe Democrats will be able to take over in 2020 and stop the worst from happening — but maybe they won't. And if Trump gets a couple more Supreme Court nominees confirmed, there's no guarantee that a Democratic fix won't be thrown out by the Court.

In addition, it's not necessary for the AHCA to pass the Senate for universal public insurance to become a consensus Democratic goal. The Medicaid expansion has been by far the most successful part of the ACA. The condition of the insurance exchanges, conversely, is likely to deteriorate even if the AHCA fails. The House passing the bill shows the true colors of the Republican Party, which should be enough.

And finally, in the short term it's unlikely that employer-provided insurance will be replaced with one fell swoop. Rather, the first major step will be to expand Medicaid and Medicare to cover as many people who don't get employer-provided or public insurance as possible, with an eye towards gradually moving more people who get insurance through work toward the public programs over time. Such expansions will be much easier, however, from the current baseline than from a Medicaid program that's been drastically cut. Passing the AHCA would mean that the next Democratic Congress has to focus on cleaning up the mess left by Republicans, and restoring funding would make the tax and spending increases to further expand Medicaid look more drastic. Leaving the ACA in place will make the move toward truly universal health care easier, not harder.

Whether it's straight single payer or — as I think is more likely — a hybrid system along the lines of France and Germany, universal health care should be the explicit Democratic goal, and I think it will be starting in 2020. The next fight in this war should be to save the Affordable Care Act and use it as the basis to keep pushing towards the ultimate goal of guaranteeing adequate public coverage for everyone.

If there was any remaining doubt that President Trump blundered badly by impulsively firing FBI Director James Comey, it ended on Wednesday. Deputy Attorney General Rod Rosenstein announced that former FBI Director Robert Mueller would be appointed as a special counsel to investigate potential links between the Trump campaign and Russian officials who attempted to affect the outcome of the 2016 elections. Even if Mueller's investigation does not result in Trump being removed from office, it's a big deal that is likely to change the political dynamics under the Trump administration.

The widely respected Muller is not going to be a patsy for the Trump administration, and the fact that he will be resigning from the prestigious law firm WilmerHale makes it clear that he's in it for the long haul. While his investigation will have a wide latitude on a day-to-day basis, Mueller is not a truly independent counsel and formally serves at the pleasure of the Department of Justice (and therefore, ultimately, the president), but as Trump has learned the hard way, firing Mueller would have the political effect of a guilty plea.

Particularly given the recent news that Trump nominated Michael Flynn as his national security adviser while knowing he was under federal investigation, it seems likely at a minimum that Mueller's investigation will uncover embarrassing information, and very possibly criminal activity, by people involved with the Trump campaign. And given Trump's recklessness and less-than-firm adherence to rules and norms, Mueller may uncover worse than that.

We have no way of knowing at this point, of course, what Mueller will find. But history can provide a couple of scenarios for thinking about how this investigation might play out.

The most common analogy will be Watergate, and the evidence that Trump committed obstruction of justice will only make the comparisons more common, given that this offense is exactly what did Nixon in. It is possible that Mueller will find something so damaging that Trump will be forced to resign or the necessary bipartisan supermajority in the Senate would plausibly convict him if he was impeached by a majority of the House.

Possible, but probably quite unlikely. Nixon's resignation occurred in a very different political context. Not only did the Democratic Party control Congress, but the Republican Party had a much larger moderate wing than it does today. It is highly unlikely that President Nixon would have been forced out of office if he was working with today's Congress. Mueller might find something so damaging that congressional Republicans conclude that it's in their interests to abandon Trump. But I strongly doubt that confirmation of the obstruction of justice, which Trump all but admitted to already, would be sufficient.

As Washington Post political reporter David Weigel shrewdly observed, a comparison that is likely to be more apt is the Reagan administration's Iran-Contra scandal. The discovery that officials within the administration had facilitated the sale of arms to Iran partly in order to illegally fund the Contra rebels in Nicaragua and partly to secure the freedom of some hostages was a substantial embarrassment, and lower-level officials were implicated in illegal activity. But it was never proven that Reagan himself was involved, and he was never seriously threatened with impeachment. With partisan polarization having intensified, this is probably the more likely scenario even if Trump's actions turn out to be more like Nixon's than Reagan's.

Iran-Contra didn't lead to Reagan's removal, but that doesn't mean it didn't matter. Reagan's approval rating dropped by roughly 20 points after the illegal arms deal was revealed. This caused the Reagan administration to pivot in a more moderate direction. Most notably, the collapse of Reagan's popularity helped contribute to the defeat of Reagan's Supreme Court nominee Robert Bork, which in turn almost certainly saved Roe v. Wade from being overruled.

Even if Trump survives Mueller's investigation, then, it is still likely to hobble his administration politically. His already-weak approval ratings are more likely to get worse than better. This will make it harder for Republicans to retain the House in the 2018 midterms, and will also hobble the passage of the party's already unpopular legislative agenda. Indeed, we may look back and conclude that Trump's decision to fire Comey saved 24 million people from having their health insurance taken away.

The Meuller investigation, in short, is bad news for an already tottering administration. The only question is how bad it will prove to be.

In substantial measure, Donald J. Trump owes both his celebrity status and accidental presidency to his impulsiveness, his willingness to say whatever he's thinking without considering the long-term consequences. Of course, the qualities that make a successful reality television star are not what make a successful president. The Trump impeachable offense du jour is the nearly inevitable result of a classic example of shortsightedness: Trump's snap decision to fire FBI Director James Comey.

On Tuesday, Michael Schmidt at The New York Timesuncovered the existence of a memo written by Comey summarizing his meeting with Trump on Feb. 14. According to Comey's notes, Trump suggested that the FBI should give a pass to Michael Flynn, Trump's initial choice for national security adviser who had been fired the previous day because he had been compromised by ties to the Russian state. "I hope you can let this go," Trump allegedly said to Comey.

Trump's decision to fire Comey alone provided powerful circumstantial evidence of Trump obstructing justice. Trump's initial justification for the firing — that Comey had mishandled the investigation into Hillary Clinton's email server, over which Trump had repeatedly called for Clinton to be imprisoned — was a comically obvious pretext. Indeed, the explanation was so specious that before the end of the week, Trump had conceded to NBC's Lester Holt that he fired Comey for refusing to rapidly conclude the FBI's investigations into Russia's attempts to intervene in the 2016 elections on behalf of Trump.

Tuesday's revelations, however, take all this to a new level. Trump apparently pressured Comey to stop investigating a prominent administration official. This is exactly the kind of obstruction of justice that forced Nixon to resign.

And things are likely to get worse for Trump before they get better. It's hard to believe at this point that Flynn isn't guilty of serious wrongdoing, given the lengths Trump — who has never had the slightest qualm about burning former associates who are no longer useful to him — has gone to protect him. And we now know that Comey took meticulous notes about every meeting with Trump. At this point it would be shocking if these notes didn't contain further examples of gross misconduct by Trump.

Trump's impulsive firing of Comey, in other words, is proving to be disastrous for his interests. Comey — who for better or worse is strongly committed to his view of himself as independent and above partisan favor — has every incentive to make sure that his side of the story gets out there. Tuesday's story makes it likely that Comey will be testifying in front of Congress soon. And the content of the rest of the non-classified memos are likely to be made public as well.

Needless to say, Democrats immediately called for the Comey memos to be released. To show how serious the scandal is, however, House Oversight Committee Jason Chaffetz is also planning to subpeona all documents relating to the Comey/Trump meetings. That even Chaffetz — who all but declared he would be Trump's poodle after conducting two years of Hillary Clinton snipe hunts — feels compelled to investigate Trump, or to at least create the appearance of investigating Trump, shows what political danger the Republicans are in.

One possibility going forward is that the Republicans decide to cut their losses, remove Trump from office either by impeachment or, on 25th Amendment grounds, get rid of a president who is likely to be an anvil for Republicans in the 2018 midterms.

At this point, however, Chaffetz — who isn't running in 2018 — remains the exception rather than the rule. Republican legislators continue to limit themselves to vague assertions of being "troubled." And there's a reason for this: Republicans have created a monster. While Trump's never-good approval ratings are tumbling among the population as a whole, he remains very popular with the Republican base: According to a Quinnipiac poll, 84 percent of Republican voters think Trump's first 100 days in office have been a success. Unless he becomes much less popular with Republican voters, acting to remove Trump would tear the party apart. And this is unlikely to happen — historically partisanship has been surprisingly resilient to even the biggest scandals, and defections have generally come from the kind of moderates who are virtually extinct in today's GOP.

Politically, then, Republicans have no good options for dealing with a president who is grossly unfit for office. And James Comey, whose actions may well have put Trump in the White House, might also be responsible for the political implosion of his presidency.

For reasons I've never been able to understand, Hillary Clinton's private email server utterly dominated coverage of her 2016 presidential campaign. Ironically, that obsession led us to elect a president who is far worse even on the narrow issue of information security. In the latest scoop from TheWashington Post, Greg Miller and Greg Jaffe report that Donald Trump revealed "highly classified" information to officials of the Russian government at a meeting last week. This is the latest illustration that Trump is unfit for office — but no doubt, congressional Republicans will continue to look the other way.

As Miller and Jaffe observe, uniquely among public officials, the president can declassify information, and therefore Trump probably didn't violate the law. But this is hardly a defense — as Matthew Yglesias at Voxquipped, "It would be legal for him to issue pardons to pro-Trump militias who execute his enemies." Given the very broad legal authority the president possesses, mere legality does not mean that an abuse of power shouldn't warrant removal from office. And there is a very good case that revealing this highly sensitive information violated his oath of office and is hence a potentially impeachable offense.

And this wouldn't be the only article of impeachment that could be filed against Trump, either. Trump's decision last week to fire FBI Director James Comey in order to obstruct the investigation into Russia's attempts to influence the election and possible collusion with the Trump campaign was as bad or worse than the cover-up that would have led to Richard Nixon's removal from office had he not pre-emptively resigned. Trump is also using his office to enrich himself in violation of the Emoluments Clause of the Constitution.

Trump is manifestly unfit to serve as president of the United States. He has committed multiple impeachable offenses, and he has not even been in office for six months. And we now know that he is putting the security of the country at serious risk. So will he be removed from office?

The problem is that, as Marquette University political scientist Julia Azari explains, the process of impeachment (which requires a simple majority of the House) and conviction (which requires a two-thirds supermajority of the Senate) is fundamentally a political, not a legal, process. A "high crime and misdemeanor" is whatever the necessary congressional supermajority says it is. In the wake of the Comey firing, congressional Republicans made it pretty clear that in their view the country should — as Iowa Sen. Chuck Grassley put it — "suck it up and move on." And while some Republican legislators might vaguely express "concern" over Trump sharing top secret information with the Russian foreign minister, there's no reason to believe that they'll do anything but look the other way.

What makes Speaker of the House Paul Ryan, Senate Majority Leader Mitch McConnell, and their respective conferences particularly contemptible is what they're shamelessly selling out their country for: some proposed legislation that is abominable on the merits that the public doesn't want. The legislative centerpiece of the House's work so far is the political suicide-literal murder pact known as the American Health Care Act. The AHCA would take health insurance from tens of millions of people and make the insurance of many of the people who retain it worse, all to pay for a massive upper-class tax cut. Trump and other prominent leaders repeatedly lied about their health-care plans, and given how massively unpopular the AHCA is, they had good reason to. And in addition to this astonishingly bad bill, Republicans are also looking to pass yet more upper-class tax cuts and yet more savage cuts in programs for the poor.

It would be bad enough if congressional Republicans were completely refusing to exercise their oversight responsibilities to pass legislation designed to help ordinary people. But they've made an implicit deal to allow Trump to threaten national security, obstruct justice, and loot the national treasury so that they can inflict needless death and suffering on ordinary people to give a yuuuuge and tremendous tax cut to themselves and their donors. It's a disgraceful situation on every level.

Make no mistake: Ryan, McConnell, and the rest of the Republican Party own Trump lock, stock, and spray tan and are fully responsible for his many abuses of power and his dangerous ineptitude. They could have, like the establishment French right, disowned Trump before the election — and didn't. They could remove him from office now that he's proven to be as unfit for office as his worst critics warned — but they won't.

Voters in November 2018 will have to remember how Republicans decided to put themselves and their party above the country, and would be wise to exercise their own removal powers.

President Trump's sudden decision to fire FBI Director James Comey on Tuesday was a genuine bombshell from an administration that seems to produce one on a daily basis. Nobody should shed any tears for Comey, who deserved his fate. But the real reason he was fired should make Americans more than a little nauseous.

The irony of the firing is that according to its stated reasons, it was eminently justified. In a letter explaining the firing, Deputy Attorney General Rod Rosenstein wrote: "I cannot defend the director's handling of the conclusion of the investigation of Secretary Clinton's emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken." Rosenstein's argument is very strong.

Comey's decision to send a letter informing Congress that the investigation into Hillary Clinton's email server had been temporarily reopened violated departmental norms and rules, as well as the wishes of his superiors. Like his similarly inappropriate editorializing after he announced that he would not recommend that Clinton be charged with a crime in July, the letter was grossly prejudicial, creating the impression that Clinton might be guilty of severe wrongdoing, when in fact it was quickly determined that the emails discovered on Anthony Weiner's laptop contained no relevant evidence. The rules that Comey violated were in place exactly to prevent the kind of interference with an election that his letter constituted.

Even worse, it was revealed Tuesday that Comey greatly misstated the number of Clinton-related emails that had been forwarded to Weiner by his wife, top Clinton aide Huma Abedin. Comey claimed last week that "hundreds or thousands" of emails had been forwarded to Weiner, but in fact it was only a "small number." This makes it even harder to understand why he didn't just wait for the investigation to conclude before informing Congress. And it also makes it hard to escape the conclusion that his violation of the rules was motivated in part by bias against Clinton (however unconscious).

The evidence overwhelmingly suggests that had Comey not sent the letter on Oct. 28, Trump wouldn't be in a position to fire him. But whether or not he changed history, Comey's misconduct was a fireable offense. So what's the problem?

The Trump administration citing Comey's indefensible interference in the election as the reason for firing him essentially amounts to trolling. As Adam Serwer of The Atlantic points out, Attorney General Jeff Sessions had previously argued that Comey had an "absolute duty" to send the October letter. It's pretty hard for an action to be an "absolute duty" in October and a reason to fire someone in May. Trump also effusively praised Comey's decision to send the letter. And, indeed, Trump reportedly told Sessions to start looking for a pretext to fire Comey last week, although the problems with his actions during the campaign were well known. The idea that Trump fired Comey because he was unfair to Hillary Clinton doesn't pass the straight face test.

The real reason is almost certainly Trump's desire to stop the FBI's investigation into Russia's attempts to influence the election, possibly in collaboration with members of Trump's campaign. Many Democratic officeholders are calling for an independent prosecutor, arguing that Trump's new FBI director is highly likely to hamstring or end the investigation into Russian electoral interference and its ties to the Trump campaign. It's very hard to disagree.

Firing Comey removes one of the few remaining meaningful checks on Trump's power. Having a Trump lackey heading the FBI will not only damage or end the investigation into the vital question of Russian attempts to influence the election. It will also make it less likely that the FBI will vigorously investigate any ongoing or future scandals involving an administration with unprecedented conflicts of interest and an open contempt for basic rules and norms.

When Richard Nixon infamously fired special prosecutor Archibald Cox, it didn't save him from being forced to resign over Watergate because Republican legislators refused to look the other way. We now live in a different, and more dangerous, world.

With the Republican Congress having clearly signaled that it will not conduct meaningful oversight of the Trump administration, this represents a political crisis. Trump has sent a message about what will happen to anyone who threatens to stand up to him. It's hard to imagine this ending well.

In President Trump's America, you can't always keep a terrible idea down.

When the American Health Care Act was first withdrawn in March, House Speaker Paul Ryan said that "we're going to be living with ObamaCare for the foreseeable future." But liberal relief may have been premature. Without even the benefit of a score from the Congressional Budget Office, House Republicans are poised to hold a vote on Ryan's plan to take health insurance away from millions of people to pay for a massive upper-class tax cut. While passage is far from guaranteed, the House leadership would not be scheduling a vote if they weren't confident that they could get the votes necessary to pass it.

Should opponents of TrumpCare be concerned? Very.

Heather Caygle of Politicoreports that some House Democrats are actually welcoming the vote. And it's certainly possible that it could work out in favor of the Democratic Party. If the House passes a bill that dies in the Senate, numerous potentially vulnerable House Republicans will be on the record as having voted for legislation that is massively unpopular. This would be another headwind for Republican efforts to retain the House with a widely disliked president from their party in the White House. The vote could mean that Democrats regain the House in 2018. So should Democrats be welcoming Republicans passing a bill and going on the record?

Not on your life (in some cases literally.) Like many arguments that losing in politics is secretly winning, this is too clever by half. The reasons Democrats should want TrumpCare to die are simple: It's an unimaginably horrible bill, and anything the House passes might ultimately become law.

It's tempting to think that any bill that can get enough votes from Freedom Caucus members in the House will be D.O.A. in the Senate. But it's more complicated than that. "For the many millions of Americans who will be adversely affected by any GOP health-care bill," observes Ed Kilgore of New York, "betting on failure could be a costly gamble." In the most likely worst-case scenario, the Senate would pass a more moderate version of TrumpCare, the conference committee would strip out enough moderate provisions to satisfy House conservatives, and then 50 senators would buckle under enormous pressure (including Senate Majority Leader Mitch McConnell, who like him or not is a formidably skilled legislative mechanic) and pass the bill.

The key, as Kilgore says, is that the House passing a bill changes the political dynamics. The House passing a bill that dies in the Senate means that Republicans put their House majority in grave peril — and probably inflicted further damage on Trump's already underwater approval ratings too — and received nothing substantive in return.

This is not to say that the Senate passing TrumpCare is likely. As many presidents have found to their displeasure, major health-care bills are a hugely difficult political lift. It won't be easy for McConnell to find a bill that the few Republican Senate moderates, Republican senators whose states have accepted the Medicaid expansion, and orthodox conservatives can agree on. McConnell has almost no margin for error: With the maximum number of Democratic votes at zero, Republicans have only two votes to spare. And even if the Senate can pass something, negotiating a bill both houses support won't be easy.

Difficult, but not impossible. And we must remember that the passage of TrumpCare would be a human rights catastrophe. TrumpCare is a huge cut to federal health-care spending that would result in millions and millions of people losing effective access to health care, with an unconscionable amount of unnecessary death, suffering, and bankruptcy as a result.

Whether you estimate the risk that a bill that passes the House would eventually become law at 5 percent, 10 percent, or 20 percent, the risk is too high. It would be better if the vote fails, even if it means that some marginal Republican House members vote "no." The sooner the effort to repeal the Affordable Care Act can be stopped, the better.

While the Republican Congress has been laughably deficient in checking President Trump's corruption and power grabs, the federal courts have been doing their job. On Tuesday, a federal district court judge blocked an executive order intending to deny federal funding to sanctuary cities. The president of the United States wasted little time in reacting, tweeting "[f]irst the 9th Circuit rules against the ban and now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!" and criticizing the winners of the suit for "judge shopping." In a subsequent interview, he expressed agreement with "the many people that want to break up the 9th Circuit."

Both the order itself and Trump's reaction to the court's ruling indicated why he's had a rough ride in the courts so far: He has no idea what he's doing.

The most obvious problem is that while U.S. District Judge William Orrick lives in the geographic area covered by the 9th Circuit — he is based in San Francisco — he does not in fact serve on that court. He's a trial judge, not an appellate one. The fact that the same president issuing executive orders apparently doesn't understand basic facts about the structure of the American judicial system is rather sobering.

Trump's threat to "break up" the 9th Circuit because "everybody immediately runs" to it doesn't make much more sense. It is true that the Constitution gives Congress the power to reorganize the federal judicial system, and some conservative legislators have floated proposals to create a new court that would cover some jurisdictions currently covered by the large and rapidly growing 9th Circuit. (Since this would mean a lot of new Republican judges — which is the real point — this would have no chance of passing the Senate as long as the filibuster remains in place.) But needless to say, even if the 9th Circuit was broken up this wouldn't stop forum (or what Trump calls "judge") shopping because suits could still be filed in the jurisdictions the 9th Circuit does cover.

It's not exactly news that Trump's tweets and interviews tend not to withstand rigorous, or even cursory, scrutiny. The bigger problem for Trump is that you can say the same thing about his sanctuary city order.

In a 1987 case which upheld the use of federal highway funds to establish a de facto national drinking age, the Supreme Court gave Congress a broad (although not unlimited) ability to use its spending power to persuade states to advance federal objectives. One of the limits that the Court placed, however, was that if Congress wants to put conditions on federal funding it "must do so unambiguously" so that states "exercise their choice knowingly, cognizant of the consequences of their participation." In addition, any conditions placed on spending must be "relevant to federal interest in the project and to the over-all objectives thereof." Congress could withhold highway spending to compel states to raise their drinking ages because it was related to the federal interest in highway safety, but it could not accomplish the same goal by threatening to withhold Social Security spending.

These restrictions made it nearly inevitable that the courts would find Trump's order unconstitutional. Judge Orrick's holding that Trump's order is not sufficiently related to the federal grants in question is debatable, although the case is strong. But it's obvious that Congress did not "unambiguously" make clear that the grants in question were conditioned on local officials enforcing federal immigration law. The Supreme Court can revise its own precedents, but lower courts cannot — hence, Orrick had no real choice but to find that the order was unconstitutional.

Trump's response in the interview that "the language on the ban, it reads so easy that a reasonably good student in the first grade will fully understand" completely misses the point. It's not the executive branch's order that needs to be clear; it is Congress that must make the conditions clear at the time that the states and/or local governments accept the funding.

This is yet another example, then, of Trump being his own worst enemy. Multiple courts have rejected his travel bans as discriminatory in substantial measure because both Trump and his close associates have announced that the bans were intended to discriminate against Muslims. If he keeps trying to fulfill his campaign promises on immigration with rushed, half-baked executive orders, it's more likely that the courts will keep striking them down. Given how bad his objectives are, this isn't a bad thing.

Make no mistake: The GOP yanking its plan to repeal and replace the Affordable Care Act to preempt its inevitable defeat in the House of Representatives is a yoooge win for the Democratic Party and the American people, and a humiliating defeat for the Republican Party.

But it's still just one win in a much bigger fight.

The most important thing about the defeat of the American Health Care Act is that the major gains that ObamaCare has made in expanding insurance coverage will mostly remain in place. But it's also worth asking why the plan failed and what it means going forward. It's a defeat that reveals real tensions and weaknesses within the Republican Party. But that doesn't mean that the GOP is doomed either.

Many of the juicypostmortems have focused on failures of leadership on the part of President Trump and Speaker Paul Ryan. And, indeed, both seem in over their heads in ways that will complicate passing the Republican agenda going forward. Ryan's alleged mastery of policy was revealed as a complete fraud, and Trump's various efforts to persuade recalcitrant lawmakers were ineffective. But it's extremely unlikely that even stronger leadership could have gotten a replacement for the ACA passed. The votes were never going to be there.

The reason the votes weren't there is simple: The proposed legislation was unimaginably terrible. And this isn't just because it was a hastily cobbled together mess that even wonks sympathetic to conservative health-care ends generally wouldn't defend. The central problem is that taking health insurance away from more than 20 million people and making insurance worse and/or more expensive for those who retain it in order to pay for a massive upper-class tax cut is an idea with no popular constituency. To pass a statute that would directly affect the lives of many voters and was supported by less than 20 percent of the public would have been political suicide.

As University of California political scientist Paul Pierson has shown with extensive evidence, repealing major social programs is enormously difficult, even in political systems with fewer barriers to changing the status quo than the American one. The weak Republican leadership didn't help, but particularly given the relatively small Republican House majority and the even narrower margin they had in the Senate, the AHCA was probably always destined to be stillborn.

This should give liberals a new appreciation for what Barack Obama, Nancy Pelosi, and Harry Reid were able to achieve when they passed the Affordable Care Act in 2010. Democrats needed the vote of each and every one of their 60 senators. That meant Reid and Obama needed the support of more than a dozen moderate Democratic senators from red states. But they also needed the plan to maintain support from liberal senators who were well aware that the ACA fell short of the universal systems common to other liberal democracies (even though it was a substantial improvement on the status quo). Last week's GOP debacle is an excellent illustration of how quickly attempted compromises can unravel from both ends. Both the left and right of the Democratic caucus deserve a great deal of credit for holding together under intense pressure to give up in 2010.

This accomplishment will remain on the books for the foreseeable future. But what does the collapse of the attempt to repeal it mean going forward?

From a Democratic standpoint, the optimistic take would be that this trainwreck represents a GOP coalition in its death throes. Just as the repeated failures of the Democratic Party to reach a consensus and enact its agenda under Jimmy Carter signaled the collapse of the New Deal/Great Society coalition, the failure of Trump and Ryan to execute what has been a rallying cry for Republicans for seven years could signal the cracking up of the Reagan coalition.

This is certainly possible. But I think reading a major realignment into the failure of RyanCare would be premature. I think it's more likely that, despite this failure, the Reagan coalition will remain resilient. Comprehensive health-care reform has always been extraordinarily difficult. Harry Truman's proposal for national health insurance never got off the ground, but this didn't mean the New Deal coalition was dead. The failure of Bill Clinton's health-care plan, which was similar in some ways to the failure of the AHCA, although the process was much more serious and protracted, did not end the liberal aspiration to attain universal health care. And given the extent to which both Congress and state legislatures are structurally titled in favor of the Republican Party, they have little incentive to moderate despite this failure.

The Democrats just won a major battle. But the war is still on.

And we shouldn't forget what the Republican Party has revealed about itself. Most of its members, including its House leader, believe that many people who can't afford health insurance should simply be left to suffer. They weren't able to get rid of the ACA, but Republicans can still hamper it administratively, through the courts, and at the state level. And they will work furiously to stop the movement to use the ACA as a basis to move toward truly universal health care.

Friday's victory is a reason for progressives to celebrate, but certainly not to be complacent.

Speaker of the House Paul Ryan finally introduced his proposed replacement for ObamaCare late Monday. It did not go well.

Democrats were predictably appalled that the GOP proposal, called the American Health Care Act, would essentially take away health care from millions of people, many of them poor, in order to pay for upper-class tax cuts. Moderate Sen. Bob Casey (D-Penn.) summed up the feelings of the Democratic caucus when he declared that the bill's savage cuts to Medicaid were a "disgrace to our nation" and that "I will fight it with everything I have."

But there was never a chance that Democrats would support any major Republican changes to the Affordable Care Act. So what's really interesting is the amount of opposition that the bill has instantly generated among conservatives.

If Democrats see taking away poor people's health care to pay for things like tax breaks for health insurance CEOs as cruel, the American right sees it as not cruel enough. Sen. Rand Paul (R-Ky.) asserted that the bill was "dead on arrival." The far-right Freedom Caucus in the House was no more enthusiastic. Conservative health policy wonks attacked the bill. And major conservative think tanks like the Heritage Foundation, the Club For Growth, FreedomWorks, and the CATO Institute immediately came out swinging against "RINOCare."

What explains the depth of conservative opposition? One possibility is that we should, as Marco Rubio might put it, dispel with the myth that Paul Ryan knows what he's doing. While some grumbling from House conservatives was inevitable, it's odd that he couldn't get buy-in from conservative organizations for a replacement plan. On its face, everything about this botched rollout seems like gross political incompetence.

Another, and perhaps more plausible, answer is that Ryan couldn't possibly be this inept. He didn't get his allies on board for a simple reason: He doesn't actually want any major repeal plan to pass.

This isn't to say that Ryan would not, all things being equal, like to kill the Affordable Care Act. His entire political career has been devoted to attacking programs for the poor to pay for upper-class tax cuts. But now passing and maintaining tax cuts and achieving other crucial objectives means Republicans must keep control of Congress — and that's where ACA repeal becomes a major political liability.

Now that it's being seriously threatened, the ACA is popular. And as Greg Sargent of TheWashington Post explains, passing RyanCare would almost certainly be a political disaster in the 2018 and 2020 elections. Marginal voters might favor "small government" and oppose the "government takeover of health care" in the abstract, but that doesn't mean they won't object to having their coverage taken away or made substantially worse.

Passing a health care bill that takes coverage away from voters would also complicate what will already be a difficult political situation for the Republicans. They've benefited from having the opposition control the White House during a time of gridlock, but now the shoe is on the other foot. The out party generally fares better in midterm elections to begin with. Even worse for Republicans, the popularity of the president is the best predictor of how the party will fare in congressional elections. And while Donald Trump was able to eke out an Electoral College win with a lot of help from an unpopular opponent and the FBI, he remains a very unpopular figure.

As Sargent says, because the gerrymandered House and the 2018 Senate map both favor Republicans, it's possible that the GOP could maintain control of both houses anyway, but there's only so much political damage they can sustain. (And remember that while gerrymandering helps you in a typical election, because it involves spreading out your supporters, it makes a party more vulnerable to major losses in a wave election.) Cutting their losses, letting ACA repeal die, and focusing on priorities that won't generate waves of intense opposition from all sides is probably the least bad political option for the GOP.

Consider the case of Rand Paul. Kentucky's very popular Medicaid program, Kynect, would be destroyed by the Republican bill. So attacking the bill from the nominal right while allowing Kynect to live would be the least bad option for Paul. Many of the other GOP senators from states that have accepted the ACA's Medicaid expansion probably feel similarly.

For many Republicans, cold political logic dictates that RyanCare should be allowed to die. And Paul Ryan might know it.

On Thursday, a unanimous bipartisan three-judge panel on the 9th Circuit Court of Appeals delivered a stinging rebuke to President Trump's travel ban on immigrants from seven Muslim-majority countries. This court's holding does not guarantee that the travel ban will ultimately be ruled unconstitutional. But it does suggest that the case against the constitutionality of the order is very credible, and that this challenge will now almost certainly get its day in front of the Supreme Court.

The Trump administration was hoping that a ruling by District Court Judge James Robart, which prevented Trump's order from being implemented, would be stayed. That would have allowed the travel ban to go back into effect. But all three 9th Circuit judges rejected that request, including Judge Richard R. Clifton, who was appointed by George W. Bush. The court found that "the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury."

The conclusion that the government would not suffer "irreparable injury" if the ban was temporarily suspended seems obvious. Indeed, the balance of harms inflicted by Trump's ban clearly falls most heavily on the people who might potentially have their lives ruined by an order that is ultimately determined to be illegal.

So, now what happens?

Just because the challenge to Trump's ban will be allowed to go forward does not mean that it will win. This particular lawsuit involves two areas — immigration and national security — where the courts tend to be very deferential to the executive branch. Could this be an exception to the general rule?

It's possible. There are several plausible arguments that Trump's order violates both the Constitution and the statute that authorized Trump to issue the order. The administration's amateurish failure to follow typical procedures is likely to make the courts less likely to apply their usual deference.

Another indication that the courts will take the legal challenges to the order very seriously is the 9th Circuit opinion that accompanied the ruling. As the court observed: "The States have offered evidence of numerous statements by the president about his intent to implement a 'Muslim ban' as well as evidence they claim suggests that the Executive Order was intended to be that ban."

The challengers of the ban will have to prove that the neutral language of the executive order conceals discriminatory intent, which can be very difficult to prove in court even in many cases where such intent is likely. In this case, however, the challengers have an advantage: the words spoken by Trump and his advisers on the campaign trail. Indeed, Trump has made little effort to hide the purpose of the ban.

As Washington state Solicitor General Noah Purcell pointed out in Tuesday's oral arguments, it is unusual to find this much evidence of discriminatory intent at this early stage of a trial, and further proceedings are likely to uncover more.

The Trump administration argued that such executive orders fall solely within the executive branch and should not be subject to judicial review. The 9th Circuit panel forcefully rejected that claim, saying: "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."

There are several ways the Trump administration can respond: It can appeal to have the case heard by a panel of 11 9th Circuit judges. It can also appeal directly to the Supreme Court. Both of these avenues, however, are likely to be dead ends. The 9th Circuit is extremely unlikely to review a well-reasoned and unanimous opinion, and the eight-member Supreme Court is also highly likely (although not guaranteed) to let the case go forward.

This does not mean the challenge to the travel ban will ultimately succeed. But it is at least an encouraging sign that the courts will act to curtail this overreach by the Trump administration.

Donald Trump's instantly infamous order barring immigrants and refugees from seven Muslim-majority countries from entering the United States has mobilized considerable opposition both on the streets and in the courts. A substantial number of lawsuits have already been filed, and they've had some tentative early successes against the immigration ban.

Now, the courts are in a position to provide a meaningful check on arbitrary and discriminatory actions by the executive branch. And this provides a solid opportunity to rethink the extreme level of deference generally accorded to the legislative and executive branches on immigration policy.

The legal case against Trump's partial ban is strong. On its face, targeting religious minorities without any serious national security justification violates the Establishment Clause of the 1st Amendment and the Due Process clause of the 5th. The strength of the case against the order was emphasized by Acting Attorney General Sally Yates announcing her refusal to defend the order in court. In response, Trump fired her. With Jeff Sessions set to take over the job, Trump's action was substantively unnecessary, but it reflects his dislike of criticism and insecurity, insecurity that it this case is eminently justified.

While intuitively, an order as obviously discriminatory and irrational as Trump's should be an easy case for the federal courts, there is one potential barrier: the so-called "plenary power" doctrine. The federal courts have traditionally been very deferential to immigration policies established by the legislative and/or executive branches. Policy choices that, in other contexts, would be obviously found to violate basic standards of equal protection or due process have been upheld in the context of immigration.

However, this doctrine is in serious need of revision by the courts, and has been undermined over time. As Jonathan Hafetz of the Seton Hall School of Law explains, the doctrine is anomalous in American constitutional law. Article I, for example, establishes many plenary congressional powers, but few people argue that exercises of these powers are therefore beyond the power of judicial review. It's reasonable to argue that the executive branch's exercise of its powers over immigration are entitled to a presumption of constitutionality, but it's far less obvious that this presumption should not be rebuttable.

Even if one is sympathetic to the plenary power doctrine as applied to immigration in the abstract, the most important justifications for judicial deference are not applicable to this particular order and the process that produced it.

The first defense for extreme judicial deference pertains to the national security justifications offered by the Trump administration for its actions. Many have argued that the courts should be very deferential to the executive in cases of national security, that they lack the knowledge and expertise of the executive branch. Sometimes, it seems clear that this deference has gone too far in the past. For example, when the Supreme Court indefensibly upheld the internment of people of Japanese descent by the Roosevelt administration in 1944, it was clear that the order lacked any serious military justification and was motivated in large measure by racial animus that long predated the bombing of Pearl Harbor, but the justices either overlooked this or chose not to find out because of the tradition of deference to the executive branch in wartime.

But even if one argues that Korematsu was the case of a good doctrine carried too far, a high level of deference is particularly inappropriate as applied to this current case. The process behind Trump's order was slapdash and inept to a degree that would be comic if the consequences weren't so dire for so many innocent people. The relevant agencies were mostly cut out of the loop, and there was disagreement within the administration over the implications of the order. The driving force behind it appears to be Trump's chief strategist Stephen Bannon, an alt-right publisher and writer with no relevant national security experience. Even if the premise that the judicial branch should defer to the expertise of the executive branch is generally sound — and this is dubious in itself — it would be bizarre to apply it in a case in which no actual expertise appears to have been involved the executive action.

The second justification for judicial deference is that, particularly on an issue as central to the function of government as national security, unelected judges should be extremely wary of overriding the decisions of elected officials who are accountable to the people. While there is some truth to this in general, there are also some obvious limitations to the argument — most notably, very few people think democracy is just simple majoritarianism, and there are many counter-majortarian features that structure the elected branches in the United States.

In the case of the Trump administration, though, an extreme level of deference based on democratic norms seems especially inappropriate. Trump's mandate to speak for the American people is shaky at best. Despite the FBI putting a probably decisive thumb on the scales less than two weeks before the election, Trump lost the popular vote by nearly three million votes, thanks to the fact that we select the president based on an anachronistic mechanism originally designed to limit democracy and overrepresent the interests of slaveholders.

Rules are rules, and Trump is entitled to exercise the formal powers of his office. The courts should not overrule his actions based on mere policy disagreement. But in this context, to argue that on national security issues, democratic norms require a level of deference from the courts that would require judges to overlook what would otherwise be clear violations of the Constitution would be perverse.

Trump's immigration orders should not be exempt from serious judicial scrutiny. And when courts apply that scrutiny, they are very likely to find that Trump's order did not comport with the fundamental requirements of the Constitution.

It was an act of simple decency. On Tuesday, President Barack Obama commuted the sentence of Chelsea Manning, who was serving a 35-year sentence for leaking a large trove of classified information. This was unquestionably the right thing to do, and helps redress a civil liberties record that is a relative weak spot in Obama's legacy.

This is not to say that the decision to charge Manning was, in itself, indefensible. There is no question that Manning giving classified materials to WikiLeaks was illegal. Should she have been exempted from prosecution as a whistleblower? It's not an absurd argument. Certainly, much of the information she released — such as video of an appalling helicopter attack on a crowd in Baghdad that killed two Reuters reporters whose cameras were misidentified as guns — was unquestionably in the public interest.

But one problem with that argument is how indiscriminate Manning was about the information she chose to release. As the political scientist Robert Farley of the University of Kentucky observes, it would be impossible for her to make crucial distinctions about what materials should be leaked because "she lacked sufficient expertise in the subject matter to tell the difference between material that was properly and improperly classified." Information the state had a legitimate interest in keeping confidential was leaked alongside information that should have been made public.

Given these factors, it was unrealistic to expect Obama to pardon Manning, which would have absolved her of guilt. But there are two reasons — each of which would be sufficient in itself — why the case for commuting Manning's sentence was not merely plausible, but compelling.

First, Manning's sentence was grossly disproportionate. Prosecuting leakers is very rare, although Obama went after whistleblowers to an unprecedented extent. The seven people prosecuted for leaking information to the media by Obama constitute 70 percent of the people prosecuted for this crime in the history of the United States. And there is certainly no precedent for anything remotely resembling a 35-year sentence for leaking information to the media. Sentencing Manning to time served would have been towards the harsh end of what was potentially justified. Arbitrarily singling out Manning for an extraordinarily harsh punishment is exactly the kind of injustice the commutation power should be used to redress.

And, second, not only has Manning been in prison much longer than her offense merited, the conditions she was subjected to in prison were a vile abuse of human rights. She was held in solitary confinement for extended periods, treatment that amounts to torture in practice, even if it's not defined as such in law. She remained in a man's prison despite announcing her gender identity as a woman in 2013. She detailed the effects of this treatment in her letter to Obama: "I am living through a cycle of anxiety, anger, hopelessness, loss, and depression. I cannot focus. I cannot sleep. I attempted to take my own life." She was actually punished for her suicide attempt with more time in solitary confinement, an act of astonishing cruelty.

The disproportionate length of the sentence given to Manning and the cruelty she was subjected to in prison make commuting her sentence a no-brainer.

This doesn't mean that Obama's opponents didn't attack it. Republican Speaker of the House Paul Ryan called Obama's commutation "outrageous," asserting that "President Obama now leaves in place a dangerous precedent that those who compromise our national security won't be held accountable for their crimes." The idea that seven years of hard prison time in often deplorable conditions doesn't constitute "accountability" reflects an appalling lack of human decency.

The harsh treatment given to Manning is particularly hard to justify given that most of the people responsible for the financial collapse of 2008 and all of the people responsible for the torture of prisoners under the Bush administration got away scot-free. While it's too late for many of the worst villains of the first decade of the millennium to be held accountable, it's important that other injustices be addressed.

Obama made the right call in commuting Manning's sentence, and it's a sobering reminder of a general commitment to decent values that Obama's successor utterly rejects. Obama didn't always do what the liberal wing of the Democratic Party would have liked, but he often still did what was right.

Hillary Clinton's loss to Donald Trump is a shocking upset that is likely to have disastrous consequences. A great deal is going to be written about what went wrong for the Democratic Party. But before we get too far into the recriminations, we should remember two crucial things. First, it's almost impossible to know how campaign tactics affected the outcome of an election. And, second, Clinton's campaign shows some of the potential perils of being too focused on the past.

Like most pundits, I have my theories about how the Clinton campaign might have screwed up. In retrospect, for example, it seems like the campaign made a mistake in making so much of its advertising negative attacks on Donald Trump's character. Given that Trump always had high personal negatives these attacks had diminishing returns, and Clinton missed an opportunity to highlight economic policy differences where public opinion favored her position. While it was not unreasonable to think Trump's particular unfitness for office created an opportunity to peel off suburban Republicans, it didn't work.

This is a plausible story, but to be frank it's just that: a story. Would Clinton using a more positive, policy-focused advertising campaign in the last month have allowed her to hold enough of the Rust Belt states that handed Trump the Electoral College? I have no idea, and there's no meaningful way to address the question.

Consider an example from the last election involving the popular vote winner failing to take office in January. For 16 years, I have been hearing people assert with the most sublime confidence that Al Gore's decision to distance himself from Bill Clinton cost him the 2000 election. There's no way of testing this theory directly, of course. But 2016 presented us with an indirect one. Hillary Clinton had a popular incumbent, one of the greatest political talents the Democratic Party has ever produced and without the scandal baggage and reputation for dishonesty that made deploying Bill Clinton a much more complicated question than Gore's critics will acknowledge, stumping hard for her. And, as a bonus, the incumbent's extremely popular and charismatic wife was also out on the campaign trail for the first major-party woman to be nominated for president. What was that worth?

Well, apparently, not much. Either the Obamas failed to move the needle, or they had an impact but it was swamped by other factors which can't be meaningfully measured. When it comes to campaign tactics, for the most part, nobody really knows anything. Be wary of assertions that there was One Magic Trick a candidate could have used to win an election, and be doubly wary when this magic bullet is an argument that the candidate advancing the policy ideas the pundit agrees with is also by remarkable coincidence always the best political strategy as well.

Admittedly, some arguments about campaign strategy are more concrete. The Huffington Post's Sam Stein has a smart postmortem arguing that the Clinton campaign deployed its resources poorly, neglecting Michigan and almost entirely ignoring Wisconsin, two of the traditionally blue states that Trump was able to flip. It's a solid critique as far as it goes, but it has two major flaws as an explanation for Trump's win. The first is that the Trump campaign was also not contesting Wisconsin, so Clinton making a play for it would have presumably caused the Trump campaign to respond. Maybe a fight over Wisconsin would have ended better for Clinton than the tough, high-spending war in Ohio did, but it's not safe to assume that it would. And, second, even if we assume that more money and attention would have allowed Clinton to hold Michigan and Wisconsin, it still wouldn't have been enough to win. Clinton still would have needed Pennsylvania or Florida or North Carolina, and she contested those states hard. It's possible that the same time and money with different messaging could have carried one or all of those states without a greater investment of resources, but such claims are essentially unknowable and unfalsifiable.

One rejoinder might be that while Michigan and Wisconsin ended up not being decisive, they could have been. Had Clinton carried Pennsylvania or Florida — both roughly within a point — then the decision to largely ignore Michigan and Wisconsin while investing in Ohio and Iowa, both of which Clinton lost by more than 8 points, would look really bad. It's a fair point. But the blunder the Clinton campaign made was to fight the last war, to be too slow to pick up on the particular threat that Trump posed in the Rust Belt.

This isn't to say that Democrats shouldn't analyze and try to learn from the defeat. But it's crucial to remember that the 2016 election is never going to be run again. We've learned for sure that Hillary Clinton should not be the Democratic nominee again, but I don't think that's something to worry about. Trump will presumably be on the ballot again, but as an incumbent with a record. What message and strategy the Democratic candidate should use will depend on who wins the nomination, what Trump's record looks like, and what the salient issues are. The 2020 election will be its own thing and should be treated as such. As Hillary Clinton now knows all too well, what we think we know about politics can be turned on its head very quickly.

"I promise you," Arizona's senior senator said Monday, "that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up." A McCain aide later tried to walk back the pledge, saying the senator would "thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career." But if you look carefully, you'll note that there wasn't really a contradiction: A Republican Senate might "examine" and hold hearings on Clinton nominees but that doesn't mean they would vote to confirm one.

What McCain said on Monday is almost certainly an honest account of what Republicans plan to do — that is, create a constitutional crisis should Hillary Clinton win the presidency and the GOP retain control of the Senate. The Supreme Court could be stuck with eight members for years, unable to resolve many crucial divisions in the federal courts. If the norm that presidents should be able to nominate qualified, mainstream judges who generally share their constitutional views disappears, the Constitution leaves no way to resolve the issue and staffing the federal government when the Senate and White House are in the hands of different parties will become increasingly difficult.

McCain's comments, first of all, should underscore that it's massively unlikely that Merrick Garland, Obama's nominee to fill the seat on the Court left vacant by the death of Antonin Scalia, will be confirmed during a lame-duck session. Republican senators will be under intense pressure not to collaborate with a Democratic president after what is likely to be a crushing defeat in the Electoral College. Throughout Mitch McConnell's tenure as leader of the Republican conference, Senate Republicans have consistently refused to make deals with Democrats even at the price of leaving substantial policy concessions on the table. Getting a slightly older and less liberal justice than might be confirmed otherwise is not the hill this practice is going to die on.

The more interesting question is what happens if Hillary Clinton wins the White House but Republicans maintain control of the Senate. This is possible — as of this writing, Nate Silver's FiveThirtyEightgives Republicans roughly a one in four chance of retaining the Senate, and two weeks ago it was closer to a 50-50 proposition. The conventional wisdom has been that it will be impossible for Republicans to keep Clinton from filling Scalia's seat for four years.

As McCain's unguarded comments indicate, this is dead wrong. Serial Republican obstruction of a Democratic replacement for Scalia is, in fact, entirely thinkable. The key question is this: What causal mechanism can force Republicans to confirm any Clinton nomination to the Court? They will surely get criticism from the press, but so what? Even if this particular form of obstructionism makes Senate Republicans marginally less popular, the electoral map in 2018 is so favorable to the GOP that it almost certainly wouldn't stop them from adding to their majority. The typical Republican senator has much more to fear from a primary electorate if a Democratic justice who would immediately become the swing justice creating majorities for liberal Supreme Court decisions was confirmed because of their vote.

One thing the conventional wisdom can't explain is why the extraordinary and unprecedented obstruction of Merrick Garland has been an utter non-issue in the presidential campaign. Regardless of whether the Supreme Court should be an important issue to most voters, in practice it isn't. Many Senate Republicans, having gotten away with it for a year, will assume they could get away with again — and they're probably right. It's true that congressional Republicans have eventually cut deals to end government shutdowns or to avoid defaulting on the national debt, but those are issues with direct, easily discernible material consequences to the public at large. The typical voter notices if they can't get into a national park or if there's massive economic collapse. They won't notice if the Supreme Court is failing to resolve circuit splits.

It's not certain that a Republican Senate would continue the Supreme Court blockade for another four years — we know the old norms are no longer operative but we can't be sure what new ones will be established. But it's entirely possible, and indeed likely.

What if Democrats retake the Senate? In this case, Republicans will almost certainly filibuster any Clinton nominee if they have the opportunity. The filibuster has already been eliminated for all other federal judicial and executive branch appointments, and Senate Democrats need to be prepared to eliminate it for Supreme Court appointments as well. If she wins, President Clinton should not re-nominate Merrick Garland, which would essentially reward Republicans for their obstructionism, but nominate someone younger and more liberal instead.

Republican Senate candidates in tight races might be distancing themselves from Trump, but collectively they're nonetheless holding a Supreme Court seat open for him. It looks like Trump will not get the chance to make any nominations — but Senate Republicans are very likely to do everything they can to ensure that Hillary Clinton can't fill the existing Supreme Court vacancy either.

­­The Republican Party fares much better in state and midterm national elections than in presidential election years. There's an obvious reason: Fewer people vote in state and off-year elections, and these electorates tend to be whiter and more affluent. So it's really no surprise that at the state level, Republicans have been passing laws that attempt to suppress the vote in all elections, so that every electorate looks like the whiter, richer off-year electorate.

On Wednesday, however, a major Fifth Circuit decision dealt a serious blow to these efforts. Much of Texas' particularly draconian voter-ID law was struck down, and the decision will almost certainly remain in effect in November. Even more important, the court identified the core problem with these laws: Their vote suppression is racially discriminatory.

Texas' SB 14 was arguably the most stringent voter-ID law in the country. The problems with this type of law are manifest. On the one hand, voter impersonation fraud is essentially non-existent in practice and has virtually no chance of affecting an election even in theory. And on the other, these requirements fall disproportionately on racial minorities and the poor. So these laws have racially disparate effects while providing negligible legitimate benefits.

Texas' law, and the similar ones being enacted by other state legislatures, are not just bad public policy — they also run afoul of federal law. While the Roberts court struck down a crucial provision of the Voting Rights Act in 2013, Section 2 of the Act — which forbids racially discriminatory state voting practices — remains in effect. The Fifth Circuit is a conservative, Republican-controlled court, and yet a 9-6 majority found that SB 14 violated the Voting Rights Act.

The court did not decide the question of whether the law was passed with a discriminatory purpose, sending that question back to the lower courts. But it did find that the law had a discriminatory effect, which was enough to violate federal voting rights law.

The majority opinion, written by Judge Catharina Haynes, was straightforward and powerful. More than 500,000 eligible voters in Texas lack the required ID. Various forms of statistical analysis confirm that racial minorities were far more likely to be affected by these requirements, and various individual cases confirm these effects. As a result, a majority of the court upheld the District Court's determination that "SB 14 has a discriminatory effect on minorities' voting rights in violation of Section 2 of the Voting Rights Act."

The lengthy, angry dissent by arch-conservative Judge Edith Jones defended the law using reasoning that would make it virtually impossible to find any vote suppression law illegal (which of course is the point.) Jones says that because the law did not affect the 90 percent of Texas minorities that had the required ID, the fact that those without the requisite IDs were overwhelmingly people of color does not represent racial discrimination. This is a transparently illogical claim.

The four Democratic nominees on the Supreme Court are nearly certain to agree with the Fifth Circuit's decision, meaning it will almost certainly stand. As a result, SB 14 will not be permitted to go into effect in its current form.

This is a major victory for voting rights.

And it's not the only recent one, either. A federal district court held earlier this week that Wisconsin's voter ID law could be applied only if people who lack the required ID can vote by submitting an affidavit. It wasn't quite the victory that the Fifth Circuit's opinion was, but it will still make it easier for the nearly 10 percent of Wisconsin's population, disproportionately poor people of color, for which it had been made difficult or impossible to cast ballots in November.

These victories are important, but they are only battles in a long war. For voting rights as for so many issues, control of the Supreme Court will be crucial. If Hillary Clinton is able to fill the vacant seat left by the death of Antonin Scalia, the Court will aggressively enforce the Voting Rights Act, and may well also rule vote suppression laws like those in Texas and Wisconsin unconstitutional. If Donald Trump is able to appoint the median justice of the Court, the Court will (like Edith Jones) wink at the discriminatory legislation Republican legislatures pass to maintain power even as they move further and further from most of the electorate.

On this issue, like so many others, the contrast between the parties couldn't be more stark.

Texas finally pushed Anthony Kennedy too far. For more than two decades, states have pushed the envelope on abortion regulation, passing restrictions that in some cases make it nearly impossible for abortion clinics to operate. On Monday, the Supreme Court finally cracked down on these attempts to surreptitiously ban abortion. In the Court's most important abortion decision since 1992, the Court struck down the worst parts of a Texas abortion statute that would have required most of the state's abortion clinics to close. It was a major victory for the pro-choice movement.

In the 1992 landmark Planned Parenthood v. Casey, the Supreme Court upheld Roe v. Wade. But this upholding of Roecame at a major cost. The Court's opinion permitted restrictions of abortion that did not constitute an "undue burden." In theory, this standard could provide robust protection for reproductive rights. In practice, the Court has allowed states to pass virtually any regulation of abortion that isn't an outright ban on pre-viability abortions. That is, until Monday. Texas' abortion statute was passed in such egregious bad faith that Kennedy — one of the authors of Casey and the Court's swing vote on abortion rights — couldn't look the other way.

Texas' infamous HB2 attempted to make abortions nearly impossible to obtain. The two key provisions were requirements that doctors performing abortions have admitting privileges at a hospital within 30 miles and that abortion clinics meet the specifications of full-service surgical centers. While these regulations are presented as health regulations, they aren't. They're not intended to make abortion — a very safe medical procedure in states that don't have these restrictions — safer. They're intended to shut abortion clinics down, period.

In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court's other Democratic nominees, the Court forcefully acknowledged this reality. "The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so," concluded the majority.

Breyer's argument that the Texas statute constituted an "undue burden" is straightforward and unanswerable. First, the regulations were not meaningfully related to protecting the health of women. All of the evidence suggests that abortion was already a very safe procedure in Texas, and the state also provided no evidence that these regulations would meaningfully improve safety. Texas, as the majority observed, could literally not name a single case in which the admitting privileges requirement would have allowed a woman to attain better post-surgical care. The health justifications offered by Texas, in other words, were obvious shams, and the Court refused to pretend otherwise.

The other half of the equation — whether the statute made it substantially more difficult for women to obtain abortions — was equally easier to answer. Eight of the state's abortion clinics closed in the months between the law's passage and its effective date of application, and 11 more closed the day the law took effect. Making women drive very long distances to obtain abortions is obviously a very substantial burden, and it was one that Texan women outside of a few urban centers would face.

Indeed, if evaluated as a health regulation, the Texas law is massively counterproductive. As Justice Ruth Bader Ginsburg observed in her brief concurrence, "When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety." If Texas wanted to protect the health of women in the state, it would want to ensure that women have easy access to licensed abortion clinics, rather than pushing them to the unregulated black market.

If a law that makes it much more difficult for women to obtain an abortion and does not have any serious health justification does not constitute an "undue burden," then the phrase has no meaning. In striking down the offending provisions of HB2, the Court acknowledged this basic reality.

Another striking indication of how specious Texas' justifications for its law were is how little of the 60 pages of the dissenting opinions, written by Justices Clarence Thomas and Samuel Alito, actually defend the law as not constituting an "undue burden." Rather, both Alito and Thomas focused on technical, jurisdictional arguments that would have prevented the Court from hearing the case.

For anyone familiar with Alito's body of work, this shouldn't be a surprise. Going back to his days as a Circuit Court judge, Alito has specialized in developing various procedural obstacles that make it practically impossible for abortion statutes to be struck down. In this case, for example, Alito argues that abortion clinics cannot invoke the right to choose to have an abortion, because this right belongs to the women obtaining an abortion. But this is obviously absurd. Closing clinics has a direct and major impact on the ability of women to obtain safe abortions, and to argue that clinics lack the standing to challenge them is silly.

To the extent that Alito and Thomas make any substantive argument at all, it is to define the "undue burden" standard in a way that would give essentially unlimited deference to legislatures. Admittedly, in its prior decisions the Court had gone pretty far down that road. But it was certainly right to finally start taking the "undue burden" standard seriously today.

This is a very important decision, but it is just one battle. The Court's opinion narrowly focused on these two particular provisions, but states have many other ways of trying to restrict access the Court will still have to deal with. Having a Supreme Court majority strongly committed to reproductive rights will be crucial. With one Supreme Court vacancy already looming, the 2016 elections will be very important for American women, and not just because we might have a woman capture the White House for the first time.

Sonia Sotomayor's opinion Monday in the Supreme Court's Utah v. Strieff rulingwas a masterpiece. It will be widely and deservedly quoted for years for its deep understanding of why Fourth Amendment violations matter. Unfortunately, her opinion was a dissenting one, in part because Stephen Breyer, a fellow Democratic nominee, doesn't really get the Fourth Amendment.

Edward Strieff was stopped by the police coming out of a house suspected to be a site for drug sales. This search — as the state of Utah did not even dispute — violated the Fourth Amendment, which requires more cause for a citizen to be stopped and have their identification checked. However, the police ended up finding that Strieff had a warrant for an outstanding traffic violation. This was used to justify searching his car, which uncovered illegal drugs and drug paraphernalia, leading to him being charged. The Utah Supreme Court held that this evidence had to be excluded because it was the fruit of the initial illegal stop of the defendant.

Since the lower court ruled in Strieff's favor, the eight-member Supreme Court decision should at worst have been a tie that resulted in the evidence being excluded. Unfortunately, Breyer — who has a regrettable history of siding with the state on Fourth Amendment questions — decided to join the remaining Republican nominees to create a gigantic loophole to the exclusionary rule. "Do not be soothed by the opinion's technical language," wrote Sotomayor. "This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong."

The majority opinion, written by Justice Clarence Thomas, was based on the so-called "attenuation" exception to the exclusionary rule: "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance." Finding the arrest warrant, the Court held, was an intervening event that means that the evidence seized from Strieff's case did not have to be excluded as the poisonous fruit of the initial illegal search by the officers.

This holding is at war with the purpose of the exclusionary rule, which is to provide an effective deterrent to police misconduct. The fact that Strieff turned out to have an outstanding warrant for a minor offense unrelated to the illegal conduct of which he was suspected doesn't change the fact that the police benefited directly from an illegal search.

Indeed, Thomas' holding stands the exclusionary rule on its head, creating incentives for the police to engage in illegal misconduct. If you illegally ask for someone's ID and you don't find anything wrong, you're very unlikely to face a serious sanction. If you do find something, you might uncover evidence that leads to an arrest. This is precisely the kind of misconduct the exclusionary rule was intended to prevent, and, as Justice Elena Kagan explains in her own dissent, finding the outstanding warrant is constitutionally irrelevant.

Writing only for herself, Part IV of Justice Sotomayor's is a powerful and devastating defense of the exclusionary rule and why gutting it matters. The arbitrary powers this opinion effectively gives to the police will not be applied equally — there is no chance that the police will start stopping people walking around Stephen Breyer's neighborhood and asking to see their papers. These powers will overwhelmingly be used against the poor and people of color, who risk being treated "as second-class citizens."

Citing (among others) W.E.B. Dubois, James Baldwin, Ta-Nehisi Coates, and Michelle Alexander, Sotomayor concisely explains how this arbitrary authority will be disproportionately applied to the most vulnerable citizens. "The white defendant in this case shows that anyone's dignity can be violated in this manner," wrote Sotomayor. "But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk' — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them."

Rewarding the police for illegal, suspicionless searches of people doing nothing wrong is also contrary to the basic individual privacy and equal citizenship the Bill of Rights and the 14th Amendment are supposed to guarantee. As Sotomayor puts it, the Court's holding "implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged."

Sotomayor's argument is unanswerable, and while it's not a surprise to see the Court's Republican nominees ignore such concerns, it's appalling for Breyer to join them. It's not as if Breyer is unmindful of the issues Sotomayor raises, or has a generally bad record on civil rights issues. His dissent in Parents Involved v. Seattle School District is a brilliant, powerful demonstration of how formally equal legal language can conceal and reinforce racial hierarchies. But for whatever reason, he has a blind spot from applying this kind of analysis to some Fourth Amendment cases.

Sotomayor's dissent should be a landmark that helps set the liberal constitutional agenda should Hillary Clinton win and produce the first Democratic-majority Supreme Court in more than 40 years by filling Antonin Scalia's vacant seat. And one person who Clinton should not nominate for Scalia's seat is Merrick Garland. Obama's lame duck nominee looks too much like another Breyer on civil liberties issues. Senate Democrats should quietly help to ensure that Garland's nomination dies in the Senate after the election. And if Clinton needs inspiration for a pick, she could do a lot worse than looking to Sotomayor.

So much for deciding the law of the land. On Monday, the Supreme Court issued a brief, unsigned, unanimous opinion in Zubik v. Burwell, the lead in a series of cases dealing with the requirement under the Affordable Care Act that employers, even religious ones, cover contraception. The opinion was unanimous, however, only because it conspicuously refused to actually decide anything.

The decision reflects not a consensus but a Court divided 4-4 on many crucial legal disputes by the death of Justice Antonin Scalia. Until the vacant seat is filled, these deadlocks (whether explicit or poorly concealed by unanimous opinions that kick the cases back to the lower courts) will continue to pile up.

The cases have come to the Court as a result of its 2014 opinion Hobby Lobby v. Burwell. In that case, the Court (unpersuasively) held that the contraceptive mandate constituted a "substantial burden" on the religious freedom of religious employers and that therefore the federal government had to find a less burdensome way of ensuring that women were provided with contraceptive coverage as part of their employer-provided health insurance packages. As the dissenters predicted, the opinion created a mess in which religious employers continued to find accommodations inadequate. Most, but not all, of the federal circuit courts to have heard this latest round of challenges have held that the new accommodations are consistent with the freedoms guaranteed to employers by the Religious Freedom Restoration Act.

Resolving this kind of split among circuit courts is the Supreme Court's job. But, thanks to Senate Republicans who refuse to give a hearing to Merrick Garland, President Obama's pick to replace Scalia, in many cases the Court is unable to perform it. The result is opinions like Zubik, in which the nation's top appellate court does not so much decide a case as beg litigants and lower courts to resolve the disputes so that they don't have to.

Rather than just uphold the opinions of the lower courts — which would have allowed affected women in most of the country to immediately start receiving the coverage to which they're legally entitled — the Supreme Court vacated these opinions. In the next round of litigation, "the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'"

In theory, this sounds reasonable. But, in practice, it is unlikely to work. These cases came to the Supreme Court in the first place precisely because the employers and the government fundamentally disagree about what constitutes a reasonable compromise between the religious freedom of employers and the right of employees to "receive full and equal health coverage, including contraceptive coverage." It seems unlikely that the Supreme Court begging them to try again will solve the problem. And indeed, one suspects the point is not so much to facilitate a compromise as to punt the issue until after the presidential election in November.

Until then, these cases will go back to the lower courts. As Justice Sonia Sotomayor observed in a brief concurrence (joined by Justice Ruth Bader Ginsburg), "the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases." Sotomayor was sure to mention as well that the Court did not endorse the arguments made by the religious employers that would make it much more difficult for employees to obtain contraceptive coverage.

The ongoing uncertainty is far from ideal. The fact that even Justice Anthony Kennedy was unwilling to accept the reasonable compromises offered by the government, however, makes it clear that things could have been even worse. Had Antonin Scalia been alive to hear the case, it seems clear that there would have been a 5-4 vote against the government. Postponement is better for people who believe that religious employers should not be able to obstruct the rights of their employees than an outright loss.

Ultimately, then, the placement of this dispute over contraceptive coverage into ongoing legal purgatory is yet another reminder of what's at stake in the upcoming elections. If Hillary Clinton wins with a Democratic Senate majority, the right of female employees to receive equal health insurance coverage in these cases will be upheld. If Donald Trump wins, this is one of the many ways in which the reproductive freedom of American women will be diminished. And if Hillary Clinton wins but Republicans hold the Senate, expect a lot more cases in which the Supreme Court is unwilling or unable to decide.

The New York Democratic primary election on Tuesday aroused a substantial amount of controversy, as numerous people discovered too late that they had missed the deadline to switch their party registration and hence be eligible to vote in New York's closed primary. It might be tempting to dismiss this as sour grapes from Bernie Sanders supporters who couldn't get their act together. But this would be wrong. There really are serious problems with New York's primary election system.

But the problem is not with New York's closed primary system per se. It's reasonable for parties to want their candidates to be chosen by the party's members. And it's particularly hard to have much patience with attacks on the closed primary from the subset of independent voters who see voting as an individualistic consumer choice and feel that identifying with a major party would be inconsistent with their personal brand, but believe they should also be able to help choose a party's candidate. It's everyone's right to consider themselves better than the sometimes ugly compromises partisan politics entails, of course, but you can't have it both ways.

New York's decision to have a closed primary is fine. But what's not defensible is how hard New York makes it to join a party. Its unnecessarily early deadlines unquestionably have the effect of disenfranchising voters.

If you were registered to vote, as most likely primary voters are, to change your party affiliation you had to act by October 9 — 193 days before the April 19 primary. No other state in the country has a deadline remotely that early. It is simply unrealistic to expect voters to be focusing on the primary elections that far in advance of the vote, particularly in a state that doesn't always play a significant role in choosing the nominee.

There is an acceptable potential range of deadlines for closed primary. I'm inclined to favor same-day registration, which certainly should be the national standard for general elections. But I can also understand arguments that a same-day deadline opens primaries to strategic manipulation from party opponents who want to assist what they perceive as a weaker candidate. New York's deadline for new voters — March 25 — is probably a little too early, but it's within a broadly acceptable democratic range. The October deadline for already registered voters, however, is far outside a defensible rage. And since Sanders can expect a higher relative level of support from unaffiliated voters, his supporters are right to be upset.

Some Clinton supporters might make a couple of responses, but they are either wrong or irrelevant.

The first line of defense can be that while New York's rules might have increase Clinton's margin of victory, she was going to win New York anyway, and getting a few more delegates wasn't going to be of much help to Sanders given Clinton's nearly insurmountable lead. Clinton supporters can also note that Sanders has benefited disproportionately from caucus contests, which are even less democratic and more exclusionary than New York's closed primary. Both of these points are true in and of themselves, and also beside the point. Republicans don't need vote suppression to win Texas's Electoral College or Senate elections, but that doesn't make vote suppression in Texas any less wrong. Anti-democratic procedures need to be changed irrespective of who they benefit and whether or not they're decisive in any particular contest.

The second potential response from Clinton supporters is even worse. The rules are the rules, some might argue, and if Sanders (or Trump) supporters couldn't figure them out, tough. Under no circumstances, however, should progressives make this argument. This is the kind of reasoning Republicans use to justify voter ID laws, restrictions on early voting, and other forms of vote suppression — if people can't figure out how to get a proper ID or make time on Election Day, why do they deserve to vote? But this is simply wrong. Voting is of huge importance collectively but any individual vote has almost no impact, so even mild disincentives can substantially reduce turnout. The state's job is to reduce as many barriers as possible, not to create impediments and tut-tut people who can't surmount them.

And the difficulty New Yorkers face if they want to switch their party registration was far from the only issue. There was also a voter purge in Brooklyn that has elicited outrage from local officials, along with many other issues. As The Nation's Ari Berman observes, "[p]olling places didn't open on time, voting machines malfunctioned, and voters showed up to find their names weren't on the rolls." The New York electoral system is a mess, designed to protect incumbents rather than facilitate voter participation.

There's nothing wrong with New York having a closed primary system. But it needs to make it easier for registered voters to switch parties. Both Clinton and Sanders supporters should be applying pressure in Albany to make the system more democratic and fair.

On Monday, the Supreme Court heard oral arguments in U.S. v. Texas, the case that will determine the fate of his executive order on immigration. Sometimes inferences drawn from oral arguments can be misleading, and this is what Obama and his supporters have to hope for: If the arguments were any indication, we're looking at a 4-4 tie. And if this happens, the lower court ruling that the order is unconstitutional will stand.

The latest legal challenge to the Obama administration concerns its Deferred Action to Parents of Americans and Lawful Permanent Residents (DAPA) order. The basic idea of the order is that because Congress has appropriated only a small fraction of the resources that would be necessary to deport everyone who is in the country illegally, the administration has to prioritize. Obama's order simply makes explicit the informal decision over who to report (criminals rather than law-abiding people with children who are citizens, for example) and allows undocumented immigrants who are not going to be subject to deportation anyway a measure of security and the ability to work legally.

The case for the constitutionality of DAPA is straightforward. Determining how to apply the law given scarce resources is a core executive power. There is ample precedent for Obama's actions, and the fact that Congress would not make the same policy choices is irrelevant unless they can pass legislation ordering Obama to do things differently (and give him the resources to make it possible.)

So the arguments in favor of DAPA are strong, but in terms of whether the orders will stand up legally they're only as strong as the Supreme Court says they are. Here, the news from Monday's argument was far from encouraging.

The three members of the Court's conservative faction who spoke at oral argument — Chief Justice Roberts and Justices Kennedy and Alito — seemed to support Texas' opinion, suggesting that if DAPA was upheld then there would be a slippery slope allowing the executive branch to refuse to deport anyone. "What we're doing is defining the limits of discretion," Justice Kennedy told U.S. Solicitor General Donald Verrilli. "And it seems to me that this is a legislative, not an executive, act." The conservative justices were also agitated by the temporary "lawful" status the government's memo granted to undocumented immigrants who will not be deported.

For his part, Texas Solicitor General Scott Keller also got a rough ride from the Court's liberal faction. Justice Kagan focused in particular on Keller's concession that it was not illegal for the executive branch to defer action on the groups covered by DAPA. "You're saying that the government could do this case-by-case, one-by-one with respect to all the people in the class," asked Kagan incredulously, "but that the government cannot identify the entire class and say we're forbearing from enforcement?" As for the "lawful presence" language that obsessed both the state of Texas' briefs and the conservative justices, Kagan correctly observed "that phrase really has no legal consequence whatsoever."

Kagan's performance was masterful — but it's unlikely that it will be enough to save DAPA. As weak as Texas' arguments were, they seemed good enough to get them the tie they're looking for.

Some Court observers had speculated before oral arguments that Chief Justice John Roberts might try to avoid a 4-4 split by agreeing with the Court's liberal faction that Texas lacked the legal standing to challenge DAPA. This is still possible. On Monday, however, he seemed skeptical, asking Verrilli to begin with the standing argument and then peppering with questions suggesting that he believed that Texas had the standing to sue.

An evenly split court affirming the 5th Circuit's opinion striking down the order would not legally settle the issue of the executive branch's authority. But it will mean that a class of undocumented immigrants will remain in an unnecessary state of legal limbo. And it also means that the policy will ultimately be determined by the next president: not only through the immigration policy he or she favors, but on who (and whether) he or she will be able to appoint to the Supreme Court.

Last week, President Obama nominated Merrick Garland to replace the vacancy on the Supreme Court created by the death of Justice Antonin Scalia. Does Garland have a chance of actually being confirmed by the Senate? Probably not, even if Hillary Clinton becomes president-elect with a pending Democratic Senate majority. Almost every signal suggests that Republican senators will remain committed to obstruction.

To start with the easy question first, you can forget about Garland getting confirmed before Election Day. Mitch McConnell has taken this position since before Scalia's funeral and he reiterated it unambiguously immediately after Garland's nomination was announced. And he's backed up by the Republican conference in the Senate. There will be no hearings, let alone a vote, before the election. Even some blue-state senators with the most to lose from Republican obstructionism, like New Hampshire's Kelly Ayotte, are reiterating their opposition to allowing the nomination of Garland to proceed. Mark Kirk, who represents Garland's home state of Illinois and is facing an uphill battle against Democratic challenger Tammy Duckworth, has shown more openness, but he's not going to cause McConnell to budge.

And, fundamentally, this makes sense from a Republican perspective. Garland wouldn't be the first choice of most liberals (myself included.) But his record indicates that he would fit comfortably within the liberal wing of the Supreme Court. Garland might disappoint liberals on some civil liberties issues, but shifting the median vote of the Supreme Court from Anthony Kennedy to either Stephen Breyer or a close facsimile of Breyer would be the biggest shift in the Court's center of gravity since the Nixon administration. Even if Senate Republicans are skeptical about their chances of winning the White House in November, the stakes are high enough that they have no reason not to gamble and hope that Donald Trump or Ted Cruz names Scalia's replacement.

But what if Hillary Clinton wins in November and brings a Senate majority on her coattails (or Trump's anti-coattails)? Utah Sen. Orrin Hatch, a former head of the Judiciary Committee himself, has suggested that Garland could be confirmed by the lame-duck Senate after an election. And there's a superficial logic to it — Garland is about the best nomination Republicans could reasonably expect from a Democratic president (particularly considering that Garland is 63, about a decade older than the typical contemporary nominee), so why not take what you can get?

But, on closer inspection, it's hard to avoid the conclusion that this is not happening. Texas Sen. John Cornyn, the second-most powerful Senate Republican, popped Hatch's trial balloon, and he will almost certainly prevail.

One daunting problem a Senate majority that theoretically wanted to confirm Garland would face is a very compressed time frame. Even relatively streamlined Supreme Court nomination processes generally require more time than a lame-duck Congress would have. Only a very focused Senate with a strong consensus in favor of confirming Garland could move a nomination that quickly through the famously sclerotic chamber.

And there's no way the will and consensus will be there. Tea Party senators will almost certainly oppose confirmation for any nominee, period. Cornyn's opposition in itself would probably be fatal. And not all of the likely opposition will come from the Republican side of the aisle. Democratic senators who would either prefer a more liberal nominee than Garland or who believe that president-elect Clinton is entitled to make her own selection are also likely to gum up the works. I doubt there would be a majority in favor of confirming Garland in a lame-duck Senate, and even if there was, the large minority opposed to it would almost certainly do what the Senate does best: stop that majority from acting.

And, again, this is not necessarily even irrational from a Republican standpoint. Even assuming that a Democratic Senate majority would blow up the filibuster and get a Clinton nominee confirmed, it's probably not hugely important to most Republican senators whether Garland or someone marginally more liberal than Garland gets confirmed, and it's certainly politically preferable for Republican senators with a wary eye on primary voters that any Democratic nominee get confirmed without Republican support.

Needless to say, if Trump or Cruz wins, they will get the next nomination no matter what. And if Clinton wins and Republicans retain the Senate, they will almost certainly just try to prevent Clinton filling the vacancy rather than confirming Garland.

Merrick Garland should be honored to have been nominated to the Supreme Court. But the only way he will actually serve on it is if he's nominated by Hillary Clinton.

Senate Republicans had been signaling since the untimely death of Supreme Court Justice Antonin Scalia that President Obama would not be the one who chose his replacement on the Court. On Tuesday, McConnell made his obstructionist statement in the bluntest possible terms: "This nomination will be determined by whoever wins the presidency in the polls. I agree with the Judiciary Committee's recommendation that we not have hearings. In short, there will not be action taken." The straightforwardness of McConnell's statement makes it clear that we've entered a new era of the Supreme Court nomination process. And it's an era in which Supreme Court vacancies will often be difficult to fill.

Senate Republicans have tried to argue that, far from breaking new ground, their refusal to consider any possible Obama nominee in an election year is merely upholding a decades-long string of unbroken precedent. This is quite simply jiggery-pokery, to quote a term made famous by Scalia. There are seven 20th century examples of Supreme Court justices being confirmed in an election year, in some cases much closer to November than the current vacancy. When Lyndon Johnson's nomination of Abe Fortas as Chief Justice was filibustered to death in 1968, the arguments focused on the accusations of corruption that would later force Fortas to resign — Senate leaders did not argue that the president had no authority in principle to make a Supreme Court appointment in an election year.

But while the categorical blockade of Supreme Court appointments is unprecedented, it doesn't come out of the blue, either. The Supreme Court nomination process has changed as the parties have become more ideologically coherent. The stakes of this particular nomination are particularly high, because the new median vote on the Court will almost certainly either be somewhat more conservative or much more liberal than the current one, Anthony Kennedy.

The ideological cohesion of the parties also helps to explain why McConnell and the Senate Republicans have taken such an uncompromising stance. Why, some commentators have wondered, did the Republicans not try to get a more moderate nominee than Obama (or, perhaps more to the point, Hillary Clinton or Bernie Sanders) would be inclined to nominate?

Part of the explanation is that McConnell has generally preferred high-stakes gambles. He could have tried to make the Affordable Care Act more palatable to conservatives or simply go all-out to try to defeat it, and he did the latter. But perhaps a more important reason is simply that there's not really much Obama could offer Republicans that both parties would find mutually acceptable. Even a relative blank slate like D.C. Circuit Court judge Sri Srinivasan is more likely than not to be a reliable vote for the liberal faction of the Court.

This hasn't always been the case. The Court has been controlled for more than four decades by Republican nominees who were conservative in many respects but were liberal on certain key social issues like abortion and gay and lesbian rights. On the other hand, JFK nominated Byron White, who was liberal on issues like civil rights and national power but was very conservative on issues like civil liberties and reproductive freedom. These nominations weren't "mistakes" so much as they reflected diverse electoral coalitions. FDR nominated some of the most liberal Supreme Court justices in history as well as some Southern segregationists. This isn't because he was mistaken about the latter, but because both types of judges represented crucial Democratic constituencies.

In that kind of partisan context, finding nominees who would be acceptable to both the president and Senate was easier. Those days are gone.

President Obama has announced that he will go ahead with a nomination anyway, and this is appropriate. The Supreme Court has generally not been a major election issue. It's not clear if it will be in 2016 despite the fight over the president's nomination power, but the Democrats will certainly try to make the Senate's obstructionism an issue in tight Senate races in blue states, such as Kelly Ayotte in New Hampshire and Mark Kirk in Illinois. If the Democrats are able to recapture the Senate and the White House, they will almost certainly be able to get a justice confirmed, as would a Republican president and Senate.

What if we have divided government, most likely in the form of a Democratic president and a Republican Senate? The brutal truth is that the Constitution provides no way of resolving such a deadlock. It is constitutional for the Senate to simply refuse to fill a Supreme Court vacancy. And despite their language about the election resolving the issue of the Supreme Court, I wouldn't bet on Senate action in such a case. If the people fail to decide the issue in November, Antonin Scalia's spot on the Supreme Court may not be filled for a long time.

Bernie Sanders very nearly pulled off an upset in the Iowa caucuses on Monday night. Does this mean he will win the Democratic nomination? Probably not — Iowa is a very favorable state for him and he couldn't quite pull it off. But even if he isn't the nominee, the traction his campaign is getting is excellent news for progressives.

Hillary Clinton has certainly been getting the message. Her populist speeches, emphasizing taxing the wealthy to pay for spending on liberal programs like early childhood education and infrastructure, have definitely moved beyond the "era of big government is over" caution she and her husband have generally been associated with.

This is not to say, of course, that Clinton has fully adopted Sanders' policies and worldview — there remain real differences between them. In his post-caucus speech, Sanders emphasized some of the issues where he's to the left of Clinton, like a proposed $15 minimum wage and free tuition at public universities. But the differences between Sanders and the party establishment's preferred candidate are much less than they would have been 20 years ago.

Still, liberals have some reason for skepticism. Is Clinton just tacking left for the primaries in response to the success of the Sanders insurgency? Will she go back to her '90s self if she wins the nomination?

I don't think so. In part, Clinton may be reacting to Sanders. But really the power of Sanders' challenge is as much effect as cause. It represents a Democratic coalition that is well to the left of where it was in 1994 or 1976. The political landscape has changed, and even Bill Clinton would govern very differently if he took office today than he did in the '90s.

For example, Hillary Clinton has been forcefully arguing for an end to mass incarceration and denouncing the racist effects of these policies. But, as first lady, she supported the 1994 omnibus crime bill signed by her husband that severely exacerbated the problem. Some liberals are surely worried that the 1994 statute represents the "real" Clinton and she'll go back once the primaries are over.

I don't think, in this case, there's much basis for concern. It's important to understand the politics of the era, and how much things have changed. The 1994 omnibus crime bill had, at the time, broad support within the Democratic coalition. Only two Democratic senators voted against the bill, and one was the conservative Alabaman Richard Shelby. Among the members of the House who voted for the bill was…Bernie Sanders. The statute was, in retrospect, a terrible mistake, but it was based on bad assumptions that were widely shared by liberal and moderate Democrats alike at the time. Neither Clinton nor Sanders would make the same mistake again.

Or take gay and lesbian rights. Bill Clinton thought it was politically necessary to sign the appalling Defense of Marriage Act after it passed with veto-proof majorities, and Barack Obama thought it was politically necessary to nominally oppose same-sex marriage. And, yet, the Supreme Court justices they appointed provided four of the five votes necessary to not only strike DOMA down but hold that the right to same-sex marriage was guaranteed under the Constitution. Both Clinton and Obama applauded these decisions, and no serious contender for the Democratic nomination will ever again oppose same-sex marriage. A party's leaders tend to move with their parties.

To assume the Hillary Clinton of 1994 would be an accurate reflection of the Hillary Clinton of 2017 is to fundamentally misunderstand how politics works. When JFK made Lyndon Johnson his vice presidential nominee in 1960, labor and civil rights groups nearly revolted in view of Johnson's fairly conservative record representing Texas in Congress. When he became president, Johnson signed arguably the most progressive collection of legislation since Reconstruction. It wasn't that Johnson changed; it was that he was representing different constituencies in a different political context.

Needless to say, with Republican control of the House all but assured there will not be another Great Society if either Clinton or Sanders get elected. Indeed, the differences between a Clinton presidency and a Sanders presidency are probably much narrower than many supporters of either assume. But even if Sanders doesn't win, the support he's generating is having an effect. If the Democrats are going to keep moving away from their timid '90s, his supporters need to keep the pressure on.

The U.S. Supreme Court may deliver a big blow to organized labor in America. On Monday, the court heard oral arguments in Friedrichs v. California Teachers Association, a case whose importance to public sector unions can hardly be overstated. If the oral argument was any indication, public sector unions are out of luck.

Friedrichs concerns the constitutionality of "agency shops" for workers providing government services. In an agency shop, people working under a collective bargaining agreement negotiated by a union are free not to join the union, but are required to pay the equivalent of the union dues. That's because without the rules of an agency shop, workers could get the benefits and protections of union membership without bearing any of the costs.

In 1977, the Supreme Court unanimously upheld agency shops in the public sector, subject to some restrictions. Unions could collect dues from non-members, but only for purposes related to employment and collective bargaining. Non-members could opt out of money used for political purposes.

The Republican Party, and hence a Supreme Court that has been largely controlled by Republican nominees since early in the Nixon administration, has moved far to the right since 1977. And the Roberts court has been chipping away at public sector unions. In the 2012 case Knox v. SEIU the court held that merely allowing non-members to opt out of political contributions violated their First Amendment rights. The court ruled that unions had to affirmatively get the consent of non-members to use dues for political purposes.

But that wasn't enough for opponents of labor. In 2014, in Harris v. Quinn, the court went further, arguing that agency shops violated the rights of home health care workers. In Friedrichs, the plaintiffs are essentially trying to make public right-to-work laws a constitutional requirement. The court is being asked to simply rule agency shops unconstitutional, full stop. This would starve unions of resources.

In theory, public sector unions should have had a reasonable chance of prevailing in the court. Justices Antonin Scalia and Anthony Kennedy have long held that the First Amendment rights of public sector employees should be minimal. In 1990 case, Scalia and Kennedy dissented from an opinion holding that it violated the First Amendment rights of public employees to be required to join the Republican Party as a condition of employment. If public sector employees can be compelled to join a political party as a condition of employment, it's essentially impossible to argue that they can't be required to pay dues for the benefits they receive from union representation.

But to be optimistic about Scalia and Kennedy assumes that they will put principle above politics. Alas, there's little reason to believe this. Most famously, Scalia and Kennedy's argument that the Affordable Care Act was unconstitutional was plainly inconsistent with Scalia and Kennedy's prior holding that the federal government could seize homegrown medical marijuana not intended for distribution. Indeed, the inconsistencies were so flagrant that Justice Ruth Bader Ginsburg's opinion holding the ACA constitutional in its entirety cited Scalia's earlier opinion chapter and verse.

Monday's oral arguments seem to make it clear that Scalia and Kennedy will decide the case based on the interests of the Republican Party rather than on their previous First Amendment doctrines. Both were relentlessly hostile not just to the arguments made on behalf of public sector unions, but to the unions themselves. Anybody holding out a hope that they may feel constrained by their previous opinions is surely disabused of the notion now.

Earlier this month in Paris, a historic accord on climate change obtained the assent of 195 countries. It will not in itself solve one of the most pressing problems facing the world, but it's a major first step. To the journalists who moderated last weekend's Democratic debate, however, it might as well not have happened. And what's even worse than the questions that weren't asked are the ones that were.

Elizabeth Kolbert's recent article about climate change and its effects on Miami makes the stakes of the issue crystal clear. "The amount of water on the planet is fixed (and has been for billions of years)," Kolbert observes. "Its distribution, however, is subject to all sorts of rearrangements." If climate change continues unabated, much of the city will be underwater before the end of the century — and it will hardly be the only case. Seems like a pretty big deal, right?

And despite the importance of the issue, it's one of the countless issues on which the two major American parties are polarized. Among Democrats, the only question is how to address climate change. Republicans, conversely, argue either that climate change is a fiction invented by communist scientists or an inevitability it would be futile to stop (and sometimes both at the same time.) Which president will be staffing the EPA and determining environmental regulations for the next four years is, therefore, a rather big deal.

But you'd never know it from Saturday's debates — despite the Paris agreement putting the spotlight on the issue, moderators ignored it entirely. But at the debate's nadir, moderator Martha Raddatz did find time for this question:

Secretary Clinton, first ladies, as you well know, have used their position to work on important causes like literacy and drug abuse. But they also supervise the menus, the flowers, the holiday ornaments, and White House decor. I know you think you know where I'm going here.

You have said that Bill Clinton is a great host and loves giving tours but may opt out of picking flower arrangements if you're elected. Bill Clinton aside, is it time to change the role of a president's spouse?

Your city might be about to drown, but your agents in the press think you're more interested in some sexist twaddle about a potential presidential spouse. Not to be outdone, David Muir followed up with Bernie Sanders, asking if his wife Jane would "have a desk close by in the West Wing." Admittedly, confining the presidential spouse questions to Clinton would have made them seem even more sexist than they were, but really.

And while that was the low point of the debate, ABC's moderators generally delivered a dreadful performance. In addition to many poorly-chosen questions, they were also aggressive at intervening if it looked like a discussion between the candidates might get too interesting or substantive.

And it's not as if climate change was the only issue the moderators deemed unworthy of the attention they granted to pressing subjects like who will be responsible for White House floral arrangements. To take one example, by the time the next president is midway between his or her first term, four members of the Supreme Court will have had their 80th birthday. Within the next decade, the median vote of the Supreme Court will be considerably more conservative or more liberal than it is now, which would have major implications for countless issues. This might seem like an important issue to bring up — but not to the people moderating the debate.

And one reason the Supreme Court is likely to be in the spotlight during the next campaign is that next June it will either have restricted the ability of states like Texas to use questionable regulations to close abortion clinics or it will have effectively overruled Roe v. Wade. Reproductive freedom is another major issue on which the parties have polarized positions, and the autonomy of American women is one of the many crucial issues at stake in the 2016 elections. Hillary Clinton referred to Planned Parenthood — which federal Republicans are trying to get defunded — multiple times, but moderators considered the issue beneath their notice.

Whatever their other flaws, the Republican debates have at least mostly involved substantive questions (if not follow-ups) from moderators. But the Democratic debate too often saw a retreat to the once-common practice of journalists focusing on trivial questions of no discernible interest to anyone but themselves. With what's at stake in the upcoming elections, watchers and voters deserve better.

Last week the Supreme Court heard oral arguments in a case called Evenwel v. Abbott. The case involves an issue of increasing importance to American politics: congressional districting. It got to the Supreme Court because conservative litigators with a successful track record of fighting against the right to vote are trying to turn the logic of pro-voter rights decisions on their head. And it's very possible that they may succeed again.

This most recent battle in the voting rights war involves two of the Warren Court's most important decisions. One of the tactics that state legislatures used to disenfranchise African-Americans was to draw district lines (or refuse to revise them) in ways that left minority voters massively underrepresented. In Alabama in 1964, for example, some counties included 40 times more people than others. In Baker v. Carr and Reynolds v. Sims, the Supreme Court held that such schemes were illegal. States were required to adhere to a "one person, one vote" standard when apportioning their legislatures. Combined with robust enforcement of the Voting Rights Act, these landmark cases helped to end Jim Crow disenfranchisement schemes.

Perversely, this lawsuit hopes to use these decisions to turn back the clock and dilute the representation of minority voters. The theory of the lawsuit is that Texas violated the Equal Protection Clause when it drew its district lines based on total population rather than on the population of voters. The state, according to the theory, should only be able to conduct apportionment according to the number of eligible voters.

If adopted, the theory presents an obvious practical problem. Total population is measured with reasonable reliability by the Census. Eligible voters are much harder to measure, not least because the numbers change every election. (What should be counted — presidential election years? Off years? State elections? Some combination?) The discretion the measure would leave to legislators leaves the process open to more of the kind of manipulation that Reynolds v. Sims tried to minimize. Plus, it just seems illogical for a state's representation in Congress to be based on total population, but its districts drawn by eligible voters.

Which brings us to the even bigger problem with the theory: In most cases, the effect of the rule change would be to overrepresent white voters and underrepresent minority voters. As Slate's Dahlia Lithwick puts it, "if the plaintiffs win this appeal, power will shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones." To read the Equal Protection Clause to not merely permit but require the underrepresentation of minority voters is, to say the least, perverse.

That the argument should be indefensible doesn't mean that it can't win. The group bringing this lawsuit scored a major anti-voting rights victory with the 2013 case Shelby County v. Holder. In that case, a bare majority of the Supreme Court gutted the Voting Rights Act. Even worse, it did so by arguing that the explicit powers given to Congress to enforce the 15th Amendment were trumped by an alleged "equal state sovereignty" principle, an idea without support in the text of the Constitution or Supreme Court precedents not written by John Roberts, save for the infamous Dred Scott v. Sanford. If the Roberts Court is willing to cut the heart out of the most important civil rights statute since Reconstruction based on arguments that feeble, it's hard to imagine why they wouldn't put the interests of the Republican Party over the interests of voters in Evenwel v. Abbott.

That said, oral argument did not clearly indicate how the case will come out. The Court's Democratic nominees were predictably hostile. Anthony Kennedy, the likely swing vote, appeared curious but non-committal to the plaintiff's novel theory. Even if the Court doesn't buy the argument that the Constitution requires the states to use voters rather than total population, if it signals that this kind of districting is permitted the consequences could be dire.

This case has to be seen as part of a larger political struggle. The Republican Party faces a problem: Demographic changes are making its overwhelmingly white voter base a smaller part of the population. This year, their presidential primary, in which the major candidates try to out-xenophobe one another, will make this problem worse rather than better. To combat this, Republican states have adopted various measures to suppress minority voters — if you can't attract their votes, keep ‘em from the ballot box or try to make their votes count less through gerrymandering. Their allies in the Supreme Court might well use this case to assist in this vote-suppression effort once again.

To wit: In Louisiana's recent gubernatorial election, Democratic state Rep. John Bel Edwards scored a rare win for the party in the Deep South, beating the scandal-tarred Republican Sen. David Vitter by an impressive 56.1 percent to 43.9 percent margin. It is far from an unambiguous progressive triumph, but it is a real one.

And yet... it's hardly all good news for the left. Edwards has a lot of conservative views, including on gun control and environmental policy. Perhaps most disturbingly, Edwards strongly opposes a woman's right to obtain an abortion.

Reproductive rights are a core Democratic value, period. National and blue-state Democrats should all favor reproductive rights. Edwards' terrible positions on reproductive rights shouldn't be ignored. Even if an opponent of reproductive rights has to be supported for tactical reasons, we shouldn't lose sight of the importance of reproductive freedom.

Given the importance of protecting a woman's right to choose, it is tempting to go further than that, and suggest that opposing reproductive rights should be a "dealbreaker" that makes supporting any candidate unacceptable regardless of the context. Tempting, but very wrong.

Let's start with this important fact: Edwards has announced that his first action in office will be to accept the Medicaid expansion offered to states by the Affordable Care Act. More than 200,000 poor people in Louisiana will have access to medical care that they didn't have before, alleviating a great deal of unnecessary pain and suffering. In addition, the influx of federal money will create jobs in one of the poorest states in the country. This is a huge deal.

The Louisiana election was not a question of whether the Medicaid expansion is more important than reproductive rights. Vitter is also a steadfast opponent of abortion rights, and for that matter, even a pro-choice governor would not be able to get rid of Louisiana's bad anti-abortion laws all by himself. The choice was between someone who is bad for reproductive rights and against Medicaid expansion and someone who is bad for reproductive rights and for Medicaid expansion. There's no choice for liberals there at all: You obviously vote for the latter. Telling poor people to wait for health care until an across-the-board liberal can win statewide election in Louisiana is a really bad idea. Not because reproductive freedom isn't extremely important, but because there are other crucial issues, and denying poor people health care wouldn't protect anyone's reproductive rights.

Indeed, "dealbreaker" logic simply doesn't work in the context of elections between polarized parties. The inevitable outcome of waiting until it's possible to address every major priority is that you would address none of them. Progressive voters in most elections, including every election for president ever, face the dilemma faced by progressive voters in Louisiana.

Let's consider the most progressive presidents of the last century. None would even come close to meeting every single progressive ideal. FDR? Not only was the New Deal suffused with white supremacist values, denying African-Americans their fair share of benefits, he ordered more than 100,000 people of Japanese descent into camps based on claims of military necessity many members of his administration knew to be specious at the time. LBJ, who signed probably the greatest package of progressive legislation since Reconstruction, ordered the escalation of the Vietnam War, leading to the pointless slaughter of a huge number of people. I don't think I need to belabor the many ways in which Barack Obama, the most progressive president since Johnson, has disappointed his liberal supporters.

The brutal truth is that politics requires making common cause with people who disagree with you. Putting off the Medicaid expansion in Louisiana until someone who would agree with blue state liberal Democrats on every issue would be as cruel and counterproductive as not passing Social Security and the National Labor Relations Act until the votes of segregationists were unnecessary, or to tell African-Americans and women that their civil rights could not be protected until Cold War liberals could be ejected from the Democratic coalition.

In the context of an election in which one party is significantly better than the other, "dealbreakers" represent a puerile form of anti-politics that make life worse for many people and better for nobody. When the Election Day comes, you pick the least bad choice, and you fight long-term to make the choices better.

In a recent speech at Georgetown University Law School, Supreme Court Justice Antonin Scalia engaged in one of his favorite modes of argument: the offensive slippery slope.

If laws burdening gays and lesbians are subject to heightened scrutiny under the Constitution, Scalia asked, "What about pederasts? What about child abusers?" It's easy — and certainly not wrong! — to find the comparison offensive. But in the context of Scalia's jurisprudence, the even bigger problem is that his argument is incoherent and obviously being offered in bad faith.

Scalia's argument is that because the Due Process Clause of the Fifth Amendment (which binds the federal government) and the Due Process and Equal Protection Clauses of the 14th Amendment do not specifically mention gays and lesbians, the amendments cannot be interpreted as preventing the state from discriminating against LGBT people. "So should I on the Supreme Court say [pederasts and child abusers are] a deserving minority? Nobody loves them... No, if you believe in democracy, you should put it to the people." There is no principled basis by which judges can distinguish between the rights of gays and lesbians or women, say, and child molesters. What minority rights are worthy of minority protection must be determined by legislative majorities.

Scalia's argument is a familiar one. His former colleague, the late Chief Justice William Rehnquist, made a similar argument as a Supreme Court clerk in 1952:

To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are…realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed. [Rehnquist]

If your theory leads you to the conclusion that Brown v. Board of Education was incorrectly decided, you need a new theory. Of course, Scalia has said elsewhere that he would have voted with the majority in Brown. But this just makes his theory less coherent than Rehnquist's. "Judges cannot determine which minority groups are entitled to heightened protections under the equal protection clause except when they can" loses quite a bit of force as a critique of the Supreme Court's holding that same-sex marriage is a fundamental right.

How can Scalia justify making an exception for Brown? It certainly cannot be derived from the text of the 14th Amendment, which does not mention race. Instead, Scalia has to argue that the equal protection clause was originally understood as applying to discrimination against African-Americans, and only this form of discrimination.

This argument, however, quickly collapses. Cases in which Scalia has interpreted the 14th Amendment as forbidding racial discrimination have generally not concerned the rights of African-Americans. Rather, these decisions have done things like shut down integration measures pursued by local school districts or protected the alleged rights of mediocre white college applicants to attend their first choice of school.

These applications pretty much destroy Scalia's allegedly "originalist" reading of the 14th Amendment. There is no evidence that the 14th Amendment was originally understood as forbidding affirmative action programs, and Scalia has never even tried to make such a case. Scalia can try to escape from this by saying that the 14th Amendment forbids a broader, more abstract principle of racial discrimination than it was originally understood as doing. But once you've started down that road, there's no principled reason to deny that the amendment forbids invidious discrimination against groups Scalia does not think are protected by the 14th Amendment, like women and gays and lesbians.

And, of course, it's worse than that for Scalia. For all his bluster implying that he's America's Last Honest Judge, we shouldn't forget that Scalia joined and has aggressively defended Bush v. Gore, the nakedly partisan resolution of the 2000 presidential election that, as it happens, was decided based on the Equal Protection Clause. Scalia would have us believe that it's absurd to think that discrimination against gays and lesbians is forbidden by the 14th Amendment. But, apparently, it's perfectly reasonable to think that the 14th Amendment forbids counting votes without a uniform state-wide standard if the count threatens to result in George W. Bush losing an election… and not in any other case (including the non-uniform count that awarded Florida's electoral college votes to Bush.) Scalia has never offered an "originalist" defense of Bush v. Gore, and I'm pretty confident we're never going to get one.

When the Supreme Court decided that bans on same-sex marriage violated the Constitution, they were doing what all judges, including Justice Scalia, do — exercise reasonable judgment when interpreting the abstract rights guaranteed by the Constitution. One can disagree with the Court's judgment, but the idea that the decision represents some kind of illegitimate usurpation of legislative prerogatives is silly. And the idea that minority rights should be left solely to the mercies of legislative majorities, whether right or wrong, is not the theory that animates the Constitution of the United States.

Ohio Gov. John Kasich was asked the first question of last Wednesday's Republican presidential debate and he came out swinging. "My great concern," he exclaimed, "is that we are on the verge, perhaps, of picking someone who cannot do this job." It is true that most of Kasich's opponents have advanced numerous nutty opinions. What's interesting about Kasich's positioning, however, is that his own views aren't all that different from theirs.

Kasich is occupying the same political space as Jon Hunstman in the 2012 Republican primaries and Joe Lieberman in the 2004 Democratic primaries. That is, he's running as the member of his party willing to tell the truth — that everyone else has gone off the rails. As a strategy for winning the nomination, it's an obvious disaster. Trying to look moderate and less partisan can be a good approach in the general election, but it's a guaranteed loser in a presidential primary, as evidenced by the tepid reaction Kasich has received from voters and donors alike.

In Kasich's case, the strategy is borne out of necessity. As governor of Ohio, Kasich is responsible for one genuinely admirable act of political courage. Republican orthodoxy currently holds that states should not accept the Medicaid expansion that was severed from existing Medicaid funding by the Supreme Court. Sure, the Medicaid expansion was funded entirely by the federal government in the first years and at least at a 90 percent level thereafter — far more generous terms than the original Medicaid program. And sure, refusing the expansion is bad for the state's economy and will mean unnecessary suffering and death for poor people. Nonetheless, Republicans have bravely stood up for the "freedom" of poor people to go without adequate medical care.

To his credit, Kasich supported the Medicaid expansion in Ohio. In itself, this might not have destroyed his chances of winning the nomination, although it was a serious problem. But he did himself no favors in the way in which he defended his decision. "Now, when you die and get to the meeting with St. Peter, he's probably not gonna ask you much about what you did about keeping government small," Kasich said in the first GOP debate in August, "but he's going to ask you what you did for the poor. Better have a good answer."

I think Kasich is right about the moral necessity of the Medicaid expansion, and I also agree with his implicit point that for most Christian conservatives the political application of their faith has a tendency to begin and end in people's bedrooms. I, however, am not a Republican primary voter or donor. People who are Republican primary voters and/or prospective donors are unlikely to respond well to someone calling a central tenet of party doctrine immoral.

Kasich's decision to run as the Last Sane Republican, as well as his laudatory decision to support the Medicaid expansion, might create the impression that he is a representative of that nearly extinct breed, the genuinely moderate Republican. But this would be highly misleading.

For example, in his opening volley against his opponents, Kasich railed against "tax schemes that don't add up, that put our kids in a deeper hole than they are today." But is Kasich's tax plan any different? Not really. It might be more realistic than, say, Ben Carson's plan to fund the entire federal government with a 10 percent or 15 percent flat tax, but that's like saying that Las Vegas is cooler than Phoenix in July.

Kasich's tax plan is standard-issue contemporary Republicanism, a combination of massive upward income distribution and magical thinking. As with his opponents, the centerpiece of his plan are massively regressive tax cuts: slashing the top marginal rate from 39.6 percent to 28 percent, cutting capital gains taxes, and eliminating the estate tax (which kicks in at amounts of $5.43 million per person.) This plan would blow a massive hole in the budget that would require either huge deficits or cuts in spending for the poor that Kasich has correctly described as immoral. Nothing about this is new: He has been equally obsessed with cutting the tax burden of the upper class as both a legislator and governor.

And not only is Kasich dishonestly suggesting that his tax plan could be consistent with balancing the budget, at Wednesday's debate he reiterated his support for a balanced budget amendment to the Constitution. This is an outright crackpot idea that would force the federal government to cut spending and/or raise taxes during recessions, a disaster that would cause untold misery every time the economy went through a downturn.

In other words, his acceptance of the Medicaid expansion notwithstanding, Kasich is essentially on the same page as his allegedly nutty opponents. The fact that he's perceived as too left-wing to win the Republican nomination says more about the competition than it does about him.

When Majority Leader Kevin McCarthy abruptly withdrew from his frontrunning candidacy to succeed John Boehner as speaker of the House, it underscored just how dysfunctional the "governing" Republican Party has become. The dispute within the party is not ideological — the degree of policy consensus within the Republican conference is remarkable. Rather, the dispute is tactical. Some party elites, like Boehner, understand that there's no chance that Republican objectives like repealing the Affordable Care Act and defunding Planned Parenthood can be achieved with Barack Obama in the White House. Members of the Freedom Caucus, conversely, believe (or pretend to believe) that threatening government shutdowns and debt defaults can somehow force Obama to sign bills erasing his primary policy achievements. No wonder nobody wants the job.

It's tempting to think that this rolling crisis, in which threats to the basic functioning of government become routine, is a temporary phenomenon. But there is a very real and frightening possibility: This is the new normal. The presence of two ideologically coherent parties, combined with the separation of legislative and executive authority, is probably going to produce similar results whenever there's divided government.

There is a tendency to assume that the American constitutional order is inherently functional, and that there's no problem that can't be solved by replacing some bad actors in the legislature and/or judiciary. Nostalgic appeals to a more functional era are pervasive. In a recent interview with Gawker's Hamilton Nolan, for example, the dark-horse presidential candidate and legal scholar Lawrence Lessig asserted that the government "has no capacity to make decisions any more" and "it's trivially easy for any major reform on the left or the right to be blocked," but that "it's a 20-year problem" based on the fact that "such a tiny number of people are funding campaigns."

This is a happy story, despite the outward appearance of despair. If American constitutionalism is essentially functional, but has been ruined by some 5-4 campaign finance decisions issued by the Supreme Court, the problems can be solved. Not easily, but it's possible to think that the next unified Democratic government can restore order.

But the truth is considerably darker. First of all, Lessig underestimates how difficult major social reform has always been in the United States. It was "trivially easy" for any major reform to be stopped before the author of Citizens United had even been born. The vast majority of the federal welfare and regulatory state was passed during two very brief periods: FDR's first term and LBJ's first three years in office. Otherwise, the alleged Golden Age of American politics was largely defined by statis.

Furthermore, it's not a coincidence that the brief periods of reform occurred during periods of unusually large Democratic supermajorities in Congress. And even these periods were far from unalloyed liberal triumphs: The New Deal, for example, gave disproportionately fewer benefits to African-Americans to win support from Southern Democrats. The American constitutional order was designed to make major changes difficult, and it has largely succeeded.

Lessig is right, however, that some things have gotten worse in the last 20 years. It's never been easy to pass major reform legislation, and as the first two years of the Obama administration shows, it's still possible given enough Democrats in Congress. What has changed is that it used to be possible to do basic tasks like keeping the executive and judicial branches properly staffed and the government funded. Congress could also at least pass compromises on issues of lower-order importance. Things have gotten genuinely worse in recent decades in these respects.

Where Lessig is wrong is to think that there's a magic bullet that can fix the problem. Reducing the role of money in politics and increasing access to the ballot are salutary initiatives that would improve things at the margin, but the dysfunction of American government is rooted deeply in the American constitutional order.

As Matt Yglesias recently explained at Vox, the fundamental problem is the diffusion of accountability that comes from separating the legislative and executive branches. As Yglesias observes, "Within a presidential system, gridlock leads to a constitutional trainwreck with no resolution." Whether Democrats or Republicans are blamed for dysfunction in a period of divided government depends largely on who voters tend to support on a tribal level.

A paradox of the American separation-of-powers system is that actions like a government shutdown can hurt the reputation of Congress as a whole without threatening the electability of most individual members, a paradox Senate Majority Leader Mitch McConnell has exploited brilliantly. Whereas congressional leaders in the opposition used to think that they had to collaborate on at least some issues with a president to avoid being punished, McConnell and other contemporary leaders have recognized that denying the president accomplishments hurts the president more than it hurts them. And lest any Republican member of Congress consider returning to the old norms for the good of the country — I know, but let's pretend for a second — they're likely to face a viable primary challenge.

Does this mean, as Yglesias argues, that American democracy is "doomed"? This is unclear. But it does mean that the dysfunction in Washington, D.C., is likely to get worse before it gets better. And pretending that any single reform — no matter how worthy in itself — can solve these deeper problems is whistling past the graveyard.

In late September, the Supreme Court refused to stay the execution of Richard Glossip, whose conviction on a charge of murder has been strongly called into question. However, his execution was stayed at the last minute by Oklahoma Gov. Mary Fallin. Glossip's fate remains unclear, but we can be certain of one thing: The American death penalty system is irretrievably broken.

This was not the first time Glossip's case has come before the Supreme Court. In its most recent term, a bare majority of the court decided that Oklahoma's death penalty protocol did not constitute "cruel and unusual punishment," even though its lethal injection procedure entailed a substantial risk of death by torture. The logic of Justice Samuel Alito's majority opinion was chilling. Essentially, by definition, Oklahoma must have the capacity to execute people, even if private individuals and organizations do not wish to collaborate. So torturing people to death isn't "cruel and unusual punishment" if it's the state's only option.

In the latest stay, the protocol was again at issue. The state did not, of course, decide that the risk of torturing people to death per se was unacceptable. However, the state was unable to procure one of the drugs necessary for its lethal injection cocktail, forcing it to suspend all executions to get the problem sorted out. The Keystone Kops nature of Oklahoma's machinery of death would be comic if its goals were not so immoral and inhumane.

Glossip — who prior to the stay was in his cell, wearing only his underwear, believing he was less than five minutes away from being escorted to his death — has been on an ugly mental funhouse ride. He has faced multiple execution dates, and remains uncertain about when and if a possibly painful death awaits him. As Justice Stephen Breyer's dissent in June observes, the uncertainty that prevails over the death penalty system is in itself a form of cruelty that should be forbidden by the Eighth Amendment.

All of this comes on top of the fact that the state's case against Glossip is very weak. Glossip did not kill Barry Van Trees, and the state's theory that he conspired with Justin Sneed to do so rests almost entirely on Sneed's uncorroborated testimony. And at least two fellow inmates — who, unlike Sneed, have nothing to gain by lying — have said that Sneed boasted about setting Glossip up to save himself from the death penalty.

This is, in other words, not exactly a rock-solid conviction. There is a very substantial possibility that if Oklahoma eventually decides to go ahead, it will be torturing an innocent man to death.

And yet, only Justice Breyer dissented from the Supreme Court's refusal to grant a stay. How could it be possible that even three relatively liberal justices would allow this execution to proceed?

The problem is that even though Glossip's moral case is strong, his legal case is much less so. For better or worse, appellate courts place great weight on the "finality of judgment." Even if a judge disagrees with Justice Antonin Scalia's view that it does not violate due process for the state to execute a factually innocent person who was given a procedurally fair trial, Glossip represents a trickier case. He does not have, say, exonerating DNA evidence and an unshakeable alibi affirmatively demonstrating his innocence. The state does not have a very good case that he is guilty, but we do not know for a fact that he is innocent.

Appellate courts are therefore not well equipped to deal with this kind of gray area. This is where governors need to step in with their powers to commute the sentences and/or pardon people convicted of crimes. At the very least, Fallin should ensure that Glossip is not executed. But public officials who are inclined to support the death penalty, particularly in red states where they also face electoral pressure to be extra-tough on crime, cannot be trusted to do the right thing.

This is the reality of the death penalty. A division of labor is set up in which numerous officials, operating within their formal legal authority, act in concert to produce a flagrantly unjust outcome for which no one person is responsible. As the legal scholar Mark Graber puts it, "Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences."

This is simply not a system that can be defended. It is becoming increasingly difficult to disagree with Justice Breyer's conclusion in June that the death penalty is categorically unconstitutional. Even if the death penalty could pass constitutional muster in the abstract, in practice it cannot be applied without violating the Eighth and Fourteenth Amendments. Glossip's case is merely one example of far too many.

Donald Trump is more of a reality show contestant engaged in the simulacrum of a presidential candidacy than an actual candidate for president. But this comes with an advantage: He can tell the truths that are inconvenient to Republican dogma.

This was evident many times during the Republican debate earlier this week. Showing both a talent for getting under the skin of Jeb Bush and a firmer grasp of the fundamentals crucial to winning elections, Trump observed in an exchange with Bush that his brother's presidency had been such a "disaster" that Abraham Lincoln couldn't have won on the Republican ticket in 2008. Bush rose to his brother's defense in a highly revealing way. "You know what? As it relates to my brother there's one thing I know for sure," Bush asserted. "He kept us safe. You remember the — the rubble? You remember the fire fighter with his arms around him? He sent a clear signal that the United States would be strong and fight Islamic terrorism, and he did keep us safe."

Bush's defense of his brother is so obviously self-refuting it would be funny if the subject wasn't so serious. Bush's invocation of the ruins of the World Trade Center while claiming that his brother "kept us safe" is reminiscent of Alan Greenspan's legendary argument that "with notably rare exceptions (2008, for example), the global 'invisible hand' has created relatively stable exchange rates, interest rates, prices, and wage rates." With the notably rare exception of the worst terrorist attack ever on American soil, George W. Bush kept us safe!

In the GOP's warped view of its national security record, you would think that the Supreme Court had allowed a fair recount to proceed in Florida, Al Gore had assumed the White House, then was replaced by the manly action hero George W. Bush after the 9/11 attacks. It's not even true that there were no further terrorist attacks after 9/11 — in fact, there were anthrax attacks after 9/11 that helped contribute to a climate of fear in which too many civil liberties were dissolved.

Nor is it true that the 9/11 attacks were a simple matter of force majeure, beyond the responsibility of the White House. When Bush assumed office, he and his foreign policy team were convinced that the Clinton administration placed too much emphasis on al Qaeda and other terrorist groups. Most of Bush's foreign policy team believed that rogue states, not stateless terrorists, were the biggest threat to American security. Presented with a memo titled "Bin Laden Determined to Strike in U.S." during a month-long vacation a little more than a month before 9/11, Bush dismissively responded, "All right. You've covered your ass, now."

To be clear, I'm not arguing that Bush could easily have prevented the 9/11 attacks by taking Islamic terrorism more seriously. The attacks may well have happened with Al Gore in the White House. But he wasn't merely a helpless bystander. His choices made stopping the 9/11 attacks less likely — and they happened. He cannot escape some measure of responsibility for them.

Worse, the Bush administration's fallacy that states, not stateless terrorists, were the fundamental threat to global security persisted after 9/11, leading to the disastrous decision to invade Iraq. Some of the Republican candidates — not only Trump but Rand Paul, Ben Carson, and John Kasich — have argued that the decision to invade Iraq, so immensely costly in human lives and resources, was a horrible mistake.

However, none of these critics of the war are going to be the Republican nominee. And most Republicans, as we could see at the debates, still haven't learned anything. "We lost friends [on 9/11.] We went to the funerals," blustered Christ Christie. "And I will tell you that what those people wanted and what they deserved was for America to answer back against what had been done to them." The answer, apparently, was to attack a random country that had nothing whatsoever to do with the attacks, because this would accomplish…well, it never made any sense.

The invasion of Iraq, as Paul attempted to explain, was counterproductive, creating anarchic contexts in which brutal terrorists have flourished. The defenders of Bush's foreign policy — particularly Marco Rubio — attempted to blame this on that meddling Barack Obama for pulling troops out of Iraq. War cannot fail for mainstream Republicans — it can only be failed by not becoming perpetual. This isn't so much a policy doctrine as a mediocre 80s action movie. And Republicans will go to any length to defend it, even if it means wiping 9/11 from Bush's record.

Did Bush "keep us safe?" Absolutely not. Indeed, one would have to go back to James Buchanan, if not James Madison, to find a president with a worse record for protecting American civilians. What's scary is that the most plausible candidates to head the Republican ticket in 2016 think that Bush's security policies were a smashing success.

Kim Davis, the county clerk in Kentucky who was jailed for refusing to issue marriage licenses to same-sex couples, was released this week, greeted by cheering right-wingers and an overly eager Mike Huckabee. Davis' deputies have declared that they will obey the law and continue to issue licenses to same-sex couples even when she returns to work on Monday, so it appears we may we have reached the end of this particular drama, as well as Davis' ability to continue obstructing the rights of her country's citizens. Now that the crowds have subsided and "Eye of the Tiger" is no longer ringing in our ears, let's examine some of the important takeaways from this controversy:

She wasn't really standing on principleSome local officials strongly opposed to same-sex marriage have reacted to the Supreme Court's decision in Obergefell v. Hodges in a genuinely principled manner. That is, they resigned. Even if you strongly disagree with them on the merits, you have to respect people who hold true to their principles and refuse to compromise them. Davis, though, is a different case. I suppose "I want to get paid for not doing my job" is a kind of principle, but it's not a very attractive one. If Davis wants to stand on principle, she should resign.

Public officials have to treat people impartiallyThere is good reason why Davis was held in contempt. The key principle here is that civil servants need to treat citizens equally and according to the law. The red tape that can be involved when the public interacts with the bureaucracy can be frustrating, but it exists for that reason. We expect, for example, the DMV to issue drivers' licenses based on neutral criteria, not to grant them based on whether it likes the cut of an applicant's jib. Should someone whose religious beliefs mandate pacifism be permitted to refuse to issue gun licenses? Should someone whose religion forbids the consumption of alcohol be allowed to refuse to issue liquor licenses to businesses? Of course not.

The Republican primaries are a race to the bottom It was inevitable that Davis would become a political symbol in the Republican primaries. And, indeed, the two candidates most aggressively courting cultural reactionaries — Mike Huckabee and Ted Cruz — have fought over who can support her most vociferously. Most of the other candidates have also supported Davis, even if they haven't gone to the extent of appearing beside her at public rallies. Only the vanity candidates Carly Fiorina and Lindsey Graham have said that Davis cannot take the law into her own hands. Interestingly, however, Donald Trump has refused to support Davis (while also declining to criticize her). Trump, whose positioning on issues is shrewder than his clownish approach might indicate, can apparently read the polls showing that Davis has little support from the public.

Contempt isn't always the right tool It's too early to know for sure whether jailing Davis for contempt will be effective in securing access to same-sex marriage licenses for residents of Rowan County. If Davis' deputies continue to issue licenses next week, then imprisoning Davis worked. As Sam Bagenstos of Michigan Law School observes, however, contempt citations aren't always the most effective way to deal with intransigence. In similar cases in the future, judges may want to consider tools other than imprisonment, such as orders that take the authority out of the hands of officials who refuse to obey the law.

Resistance to same-sex marriage is likely to be futile Just because the Supreme Court announces a right doesn't mean that public officials will enforce the right. The Supreme Court's decisions on school desegregation and reproductive freedom, for example, have faced substantial successful resistance. As the legal scholar Mark Graber observes, however, resistance to same-sex marriage is less likely to be effective. Marriage rights affect more than just the economically disadvantaged. Opposition to same-sex marriage isn't very strong and is declining. And the courts have the effective capacity to compel the issuance of a marriage license, while they aren't always capable of desegregating schools.

This doesn't mean that the struggle over gay and lesbian rights is over — far from it. Anti-discrimination statutes that impose significant costs on anti-gay businesses will be a much harder lift, a non-starter both in most red states and in a Republican Congress. On the narrow issue of same-sex marriage, however, it is unlikely that Davis and her ilk will be able to stem the tide.

Unlike its Republican counterpart, the basic contours of the contest for the Democratic presidential nomination are fundamentally uninteresting. Hillary Clinton, barring an act of force majeure, will be the nominee. Bernie Sanders has done yeoman work injecting some real economic liberalism into the primary discourse and may even be able to win New Hampshire, but he's not capable of assembling a coalition that can beat Clinton.

But what fun is there in that story? The media prefers drama, and so we get an overblown email scandal and an attempt to pretend that a Joe Biden candidacy is viable.

As Matthew Yglesias of Vox observes, the general media reaction to the latest Quinnipiac University poll is a case in point. The poll shows Clinton with a commanding lead in the Democratic primary, and it shows her beating every Republican candidate she was polled against (Jeb Bush, Marco Rubio, and Donald Trump) head-to-head. In front in both the primary and general election polling — that's where you want to be, right?

Instead, most reactions focused on one potentially negative fact about the polling: Clinton did not do as well against her hypothetical Republican opponents as Vice President Joe Biden, and also had slightly lower favorability ratings among Democratic voters.

So should a Biden candidacy be considered a thing? Not really. For one, there really is no reason to believe that he will actually enter the contest. As Ed Kilgore wonderfully puts it at Talking Points Memo, "The more you look at the Biden bandwagon, it looks more like a ghost ship being pulled through the mist by a combination of hungry political reporters, Hillary haters (including most of the conservative media), and Delaware-based Friends of Joe who, of course, would love to see him run." If Biden were serious about running, he almost certainly would have entered the race by now.

But even if he did run, there's little reason to believe he'd be a serious threat to Clinton. He would have no discernible policy rationale for running, and his last two attempts to seek the Democratic nomination were fiascoes. He's already run against Clinton once, and he ended up in a rather pathetic battle with Bill Richardson and Chris Dodd to avoid finishing in last place in Iowa. He would probably do better with the vice presidency under his belt, but not that much better. And if he ran, his favorability ratings would take the same hit that Clinton's did.

The matter of age prompts my broader theory of Biden's case: He should run as Biden Unbound. He can, pardon the phrase, trump concerns about age by announcing that he'll seek just a single term — and picking a strong, preferably female, running mate…

One-term Biden wouldn't have to worry about satisfying constituencies or winning re-election. One-term Biden, this argument would go, would be free to craft the kind of bipartisan deals that only a Senate veteran can pull off — although, in my view, Biden's chief deal-making claim to fame as vice president, the fiscal-cliff agreement, gave away too much to Republicans. [The Washington Post]

Biden, Marcus argues, should emulate the Jackson-era president James K. Polk by promising an accomplished first term and then getting out. Does this make any sense? Not at all.

The most serious problem with Marcus' analysis is the idea that if Biden preemptively declared himself a lame duck he "wouldn't have to worry about satisfying constituencies." A president always has to worry about this, at least to the extent that he wants to accomplish anything. Contemporary presidents, by definition, lead national coalitions and all presidents need collaboration with Congress to get legislation passed, to staff the legislative and executive branches, etc.

For that matter, it's not true that Biden wouldn't have to worry about re-election; presumably he would care who wins the White House in 2020, and the popularity of the incumbent is certainly pertinent to this result. If Biden genuinely didn't care about the next election, this would in itself be a disqualifying factor.

One suspects that what Marcus really has in mind is the possibility that a one-term Biden would be in a better position to fight the one constituency she opposes: the strong majority of the public that is against Social Security cuts. I have no idea if a one-term Biden would be more likely to reach a substantively and politically disastrous "Grand Bargain" to cut Social Security, but if so that's another reason to oppose his candidacy.

Fortunately, the whole question is almost certainly moot. Biden is very, very unlikely to run, and if he did he wouldn't win. Pundits who want excitement still have the chaotic Republican race to look at.

Every major national Republican is sure that they want to repeal the Affordable Care Act. They are much less clear about what, if anything, they would do after stripping insurance from millions of people. Two plausible Republican nominees for president — Scott Walker and Marco Rubio — issued health care plans this week. And…let's just say there's a reason Republicans spend a lot more time on the "repeal" part of the "repeal and replace" equation.

Indeed, to call these positions "plans," as opposed to gestures in the direction of having a policy alternative, is probably too generous. As Jon Chait of New York puts it, they are "not so much plans as skeletal descriptions of planlike concepts." Still, even in larval form, Walker's plan contains several elements that are common to most Republican health care proposals, and that if enacted would result in horribly unpopular policy disasters. Here are the main features:

End the individual mandate

Most individual components of the Affordable Care Act are popular; the requirement that people carry insurance or pay a tax penalty is not. And since the mandate was very nearly the lever that gave a conservative Supreme Court majority a pretext to declare the ACA unconstitutional, Republicans have also convinced themselves that it is one of the greatest threats to liberty ever seen. So it is inevitable that any Republican proposal will advocate eliminating it, as Walker's does.

The problem is that the popular parts of the ACA can't be divorced from the mandate. If people are permitted to free-ride, the health insurance market can't work. Multiple states tried to initiate ACA-like reforms without a mandate, and it was a disaster — young and healthy people decline to buy insurance knowing they can get it if they fall sick, premiums increase, more people drop out, and the market collapses. This is why President Obama — who pandered during the 2008 primaries by putting forward a plan without a mandate — recanted as soon as he was in a position to actually try to get a law passed.

Make state regulations ineffective

Whenever conservatives have a policy they would prefer not to defend on the merits, the language of federalism comes in handy. In health care, virtually all Republican plans argue for permitting the purchase of insurance across state lines. Walker's is no exception: "My plan would allow individuals to shop in any state to find health insurance that covers the services they need at a price that fits the family budget."

In the abstract, a policy of permitting people to shop for insurance across state lines sounds attractive. In practice, it would be a regulatory race to the bottom. Insurance companies would gravitate to the states that place the fewest regulations on insurance industries. It would therefore become easier for insurance companies to deny claims, rescind insurance (or refuse to give it in the first place), and impose hidden costs. If you think credit card companies should be a model for health insurance companies, then Walker's plan might sound like a good idea. If you're thinking more clearly, it's obviously a terrible one.

Make it easier to sell junk insurance

Walker's plan would reduce federal regulations as well. The Affordable Care Act's requirement that insurance actually cover things would be eliminated, as would other provisions such as the popular requirement that children be allowed to stay on their parents' plan until age 26. Other provisions of the ACA, like the ban on discrimination based on pre-existing conditions, would be seriously weakened. So at the same time as Walker's plan would effectively eliminate many state regulations, it would also leave the insurance companies mostly unsupervised by federal regulations as well.

Conservatives would defend this awful idea by posing a choice between "regulation" and "competition." But the problem is that health care simply lacks the features of a competitive market. There's a reason why other liberal democracies have more state intervention into health care than the United States, not less. And by the way, they all cover more people for significantly less money.

Attack the poor

Walker's politics are not about small government. After all, he thinks that abortion should be illegal even when necessary to save a woman's life, and he just approved a $250 million gift of taxpayer money to hedge fund billionaires to build a basketball stadium. Rather, his politics are about assisting the rich and powerful at the expense of the poorer and less powerful.

His health care plan is no exception. Like the ACA, Walker's plan would offer tax credits to allow people to purchase insurance. But Walker's tax credits would be distributed on the basis of age, not income. The result, as Jeffrey Young and Jon Cohn demonstrate, would be a disaster for the non-affluent, as insurance would become unaffordable for many people at any age. And in addition, Walker also advocates savage cuts to Medicaid. The callousness Walker showed in refusing the ACA's Medicaid expansion in Wisconsin is reflected in his health care plans.

So Walker's plan would be an utter disaster if implemented. But it's not just about Walker. Amazingly, some conservative candidates and pundits attacked Walker's plan from the right. A spokesman for also-ran candidate Bobby Jindal accused Walker of collaborating with Bernie Sanders to create a plan that would make health care far less accessible to the non-rich.

Essentially, Republicans look at the state of health care circa 2009 — in which more than 16 percent of Americans were uninsured, and in which insurance companies could abuse consumers in a number of ways — and argue that even fewer Americans should have insurance and the quality of the insurance should be much worse. This is one of the many reasons that the contemporary Republican Party is simply unfit to govern at the national level.

The distinguished legal scholar Lawrence Lessig has announced that he's exploring a run for president. His goals are laudable, and he remains a valuable critic of the problems at the core of American democracy. A presidential run, however, is almost certainly not a good way to address these problems, and reflects some fundamental misunderstandings about American politics.

Lessig does deserve credit for (potentially) running in the Democratic primary, rather than risking throwing the election to the Republicans with a third-party run. And there's certainly nothing wrong with the "Citizens Equality Act" Lessig is devoting his campaign to advancing. It would guarantee the right to vote and make Election Day a holiday, end partisan gerrymandering, and create a system of public financing for elections.

So far, so good. But are these ideas absent from the Democrats already in the race?

Not really, although of course the details aren't identical. Hillary Clinton, the prohibitive frontunner, has solid views on these issues. She could certainly be pushed further, but this could be done by people already in the race. Bernie Sanders is a strong proponent of publically financed elections. Martin O'Malley, Hillary Clinton's largely forgotten challenger, has tried to make the right to vote central to his campaign. And his rhetoric has substantive achievements to back it up: When he was governor of Maryland, he signed legislation expanding early voting and same-day vote registration.

Lessig concedes that some of his opponents have good views on the issues. But he argues that they don't have a viable path to getting democratic reforms enacted into law. "The question is not if [Sanders] checked the right policy boxes," Lessig told Sam Stein of TheHuffington Post. "It is does he have a way to get those policies passed?"

A fair question. The problem is, Lessig doesn't actually have a good answer.

Lessig's strategy involves making the 2016 election into a "referendum" on the Citizens Equality Act. By focusing solely on this proposal — and claiming that he would resign once it passed — Lessig would allegedly create a mandate that would force Congress to pass the bill. "Even if [Clinton] did say exactly the right things, I don't think it's credible that she could achieve it because she — and the same thing with Bernie — would be coming to office with a mandate that's divided among five or six different issues," asserts Lessig.

But this does not make any sense. Precisely because of the democratic defects Lessig identifies, Republicans will almost certainly control the House in 2016. The magic word "mandate" is not going to compel Republicans to pass legislation that would be politically suicidal for many members and opposed by most Republicans in principle. As is often the case, the word "mandate" is being used to substitute for an actual plan.

The fatal problem with Lessig's strategy is that after a typical referendum, the policy in question is enacted after a "yes" vote, subject only to judicial review. After a presidential election, both houses of Congress are still required to pass any law, and no campaign strategy can force hostile members of Congress to sign their political death warrant. You cannot just declare a presidential election a "referendum" by fiat.

Nor does the plan make any sense historically. Consider the Great Society, the result of the most productive period of progressive lawmaking of the 20th century. "It wasn't about shedding light on a single issue. It was about bringing together a large (and, as a result, fragile and fractious) coalition, the exact opposite of what Lessig describes doing," says the Marquette University political scientist Julia Azari, author of a definitive study of presidential mandates.

By his own admission, Lessig has the tendency to act based on how he would like things to be rather than on how they are. His proposed campaign exemplifies this flaw. The idea that fierce opposition from Republicans and conservative Democrats can be overcome by a single-issue campaign is just daydream believing, and also elides the question of how one is supposed to assemble a majority coalition while ignoring the priorities of most potential Democratic voters. (Electoral reform is important, but so are issues of racial and gender and economic inequality, and Democratic voters don't want their standard-bearer to ignore them.) Overestimating the potential support from Republicans was one of the factors that led to disastrous results for his Mayday super PAC, and it would doom his electoral strategy as well.

There are already several candidates sympathetic to Lessig's message. A presidential campaign based around a transparently doomed electoral and legislative strategy is a highly inefficient way of pushing that message further in the right direction. "People think that in order to move an issue, they need to play political hardball — be a super-donor, or be a candidate," Mark Schmitt, director of the political reform program at the New America Foundation, told me. "But I think it's likely that Lessig is more effective just writing books and articles about the issue rather than running a super PAC or running for office. He should make the most of what he's good at."

Lessig is a first-rate intellectual, but he doesn't have the political skills of Sanders or O'Malley, let alone Clinton. He should use his unusually influential status to provide ideas to sympathetic political professionals — not try to replace them.